Loading...
HomeMy WebLinkAbout20-540 Baker PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL November 4, 2020 To the Requester: Annette C. Baker 20-540 Dear Annette C. Baker: This responds to your letter dated September 21, 2020, by which you requested an advisory from the Pennsylvania State Ethics Commission . Issue: Whether Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual who authored and published a book entitled nstitution: The United States Constitution, The Declaration of Independence & Other Facts About the Keystone State with regard to continuing to offer such book for sale if the individual would be elected as a Pennsylvania State Senator. Facts: You request an advisory from the Commission based upon the following submitted facts. You authored and published a book entitled onstitution: The United States Constitution, The Declaration of Independence & Other Facts About the Keystone State (the Book). The Book includes the text of the Pennsylvania Constitution, the United States Constitution, and the Declaration of Independence as well as content that you created. The Book is currently available for purchase from you directly or from Amazon, and there are plans to make a Kindle version of the Book available for purchase. You are seeking election as a Member of the Pennsylvania Senate. Based upon the above submitted facts, you ask whether the Ethics Act would impose prohibitions or restrictions upon you with regard to continuing to offer the Book for sale if you would be elected as a Pennsylvania State Senator. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not Baker, 20-540 November 4, 2020 Page 2 been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest.--No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act restricts public officials/public employees in their public capacities, not their private capacities. Subject to the statutory exclusions to the definition of the interest, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. To the extent the activities of a State Lction (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they are constitutionally controlled and are exempt from the purview of the Ethics Act and the Commission. See, Mann, Opinion 07-005; Confidential Opinion, 05-002; Corrigan, Opinion 87-001. Baker, 20-540 November 4, 2020 Page 3 Section 1103(d) of the Ethics Act prohibits a public official/public employee from accepting an honorarium: § 1103. Restricted activities. (d) Honorarium.--No public official or public employee shall accept an honorarium. 65 Pa.C.S. § 1103(d). llows: § 1102. Definitions "Honorarium." Payment made in recognition of published works, appearances, speeches and presentations and which is not intended as consideration for the value of such services which are nonpublic occupational or professional in nature. The term does not include tokens presented or provided which are of de minimis economic impact. 65 Pa.C.S. § 1102. generally includes payments that are made in recognition of speaking engagements/presentations, appearances, and published works, but excludes such payments if: (1) they are legitimately intended as consideration for the value of such services; and (2) they are undertaken in the public officapacity and are not related to the public position. Sims, Order No. 1769; Confidential Opinion, 14-007; Confidential Opinion, 01-001. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. If you would be elected as a Member of the Pennsylvania State Senate, upon assuming said position, you would in that capacity be a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, restricts public officials/public employees in their public capacities, not their private capacities. Therefore, Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity, from continuing to offer the Book for sale if you would be elected as a Pennsylvania State Senator. You are further advised that the Bookas currently writtenwould not be considered related to your potential public position as a Pennsylvania State Senator because you did not hold such public position at the time you authored and published the Book. Therefore, any payment from sales of the Book that would be legitimately intended as consideration for the value of the Book would not constitute an honorarium as that term is defined by the Ethics Act and could be accepted by you subject to the restrictions of Section 1103(a) of the Ethics Act. Cf., Confidential Opinion, 01-001; Confidential Opinion, 11-003. If you would be elected as a Member of the Pennsylvania State Senate, you should seek further advice from the Commission in the event of any proposed substantive changes to the Book. Baker, 20-540 November 4, 2020 Page 4 The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: Based upon the submitted facts that: (1) you authored and published a book entitled onstitution: The United States Constitution, The Declaration of Independence & Other Facts About the Keystone State (the Book); (2) the Book includes the text of the Pennsylvania Constitution, the United States Constitution, and the Declaration of Independence as well as content that you created; (3) the Book is currently available for purchase from you directly or from Amazon, and there are plans to make a Kindle version of the Book available for purchase; and (4) you are seeking election as a Member of the Pennsylvania Senate, you are advised as follows. If you would be elected as a Member of the Pennsylvania State Senate, upon assuming said position, you would in that capacity be a public official subject to the provisions of the 1101 et seq. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, restricts public officials/public employees in their public capacities, not their private capacities. Therefore, Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity, from continuing to offer the Book for sale if you would be elected as a Pennsylvania State Senator. You are further advised that the Bookas currently writtenwould not be considered related to your potential public position as a Pennsylvania State Senator because you did not hold such public position at the time you authored and published the Book. Therefore, any payment from sales of the Book that would be legitimately intended as consideration for the value of the Book would not constitute an honorarium as that term is defined by the Ethics Act and could be accepted by you subject to the restrictions of Section 1103(a) of the Ethics Act. If you would be elected as a Member of the Pennsylvania State Senate, you should seek further advice from the Commission in the event of any proposed substantive changes to the Book. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, Baker, 20-540 November 4, 2020 Page 5 delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel