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HomeMy WebLinkAbout22-505 Hafner 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 January 27, 2022 To the Requester: Mr. C.J. Hafner, II Chief Counsel Democrat Legal Staff 535 Main Capitol Harrisburg, PA 17120 22-505 Dear Mr. Hafner: This responds to your letter dated January 13, 2022, by which you requested an advisory opinion from the Pennsylvania State Ethics Commission (Commission), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon a State Legislator serving in the Pennsylvania Senate with regard to receiving payment for teaching a course on the subject of How to Run for Public Office as a part-time faculty member of the Temple University School of Law? Brief Answer: NO. The Ethics Act would not prohibit the State Legislator from receiving payment for teaching a course on How to Run for Public Office at the Temple University School of Law as a part-time faculty member because compensation received for teaching the class would not be an honorarium prohibited by Section 1103(d) of the Ethics Act. See, Confidential Opinion, 14-008. Hafner, 22-505 January 27, 2022 Page 2 Facts: You request an advisory opinion from the Commission on behalf of Pennsylvania State Senator Amanda Cappelletti (Senator Cappelletti). You have submitted facts that may be fairly summarized as follows: Senator Cappelletti was elected to the Pennsylvania Senate on November 3, 2020, to th represent the 17 District, which is comprised of parts of Delaware and Montgomery Counties. In 2017, Senator Cappelletti graduated from the Temple University School of Law (Law School) and the Temple University College of Public Health. During her studies, Senator Cappelletti engaged in the following academic-related activities: In 2014, Senator Cappelletti was a summer Health Policy Intern at Child Care Aware of America in Arlington, Virginia; During the 2015-2016 academic year, Senator Cappelletti served as a Policy Intern at the Institute on Disabilities in Philadelphia, Pennsylvania; During the 2016 spring semester, Senator Cappelletti served as a Legal and Policy Intern for Pennsylvania State Representative Donna Bullock; and During the 2016-2017 academic year, Senator Cappelletti was a Legislative Fellow with the ACLU of Pennsylvania. After Senator Cappelletti graduated in 2017, she served as a moderator for a Continuing Legal Education course held by the Law School. In November 2017, Senator Cappelletti was elected as a Supervisor for East Norriton Township, Montgomery County, Pennsylvania. In 2019, Senator Cappelletti accepted the position of Director of Policy for Planned Parenthood Pennsylvania Advocates. Senator Cappelletti is interested in teaching a course (Course) on the subject of How to Run for Public Office as a part-time faculty member of the Law School. Senator Cappelletti would be compensated at the rate of $1,000.00 per credit for teaching the Course, which is the standard compensation for part-time faculty members at the Law School. Because the Course is a three-credit course, Senator Cappellettis compensation would total $3,000.00. Parking is also provided to all part-time faculty members. You have submitted a copy of the syllabus for the Course, which is incorporated herein by reference. You state that Senator Cappelletti would not use any legislative staff, services, or resources to prepare or teach the Course. Based upon the above submitted facts, you pose the following questions: Hafner, 22-505 January 27, 2022 Page 3 1. Whether the Ethics Act would impose any prohibitions or restrictions upon Senator Cappelletti with regard to serving as a part-time faculty member of the Law School; and 2. Whether the compensation that would be paid to Senator Cappelletti for teaching the Course would constitute an honorarium prohibited by Section 1103(d) of the Ethics Act. 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 been submitted. It is the burden of the requester to truthfully disclose all 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 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. Hafner, 22-505 January 27, 2022 Page 4 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 does not prohibit a public official/public employee from having outside business activities or employment. However, subject to the statutory exclusions to the definition of the interest (i.e., the de minimis exclusion and the class/subclass exclusion), 65 Pa.C.S. § 1102, the 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 (financial) 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. 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. Hafner, 22-505 January 27, 2022 Page 5 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 offi professional or occupational capacity and are not related to the public position. Sims, Order No. 1769; Confidential Opinion, 14-007; Confidential Opinion, 01-001. Teaching a class at an accredited educational institution is not an appearance, speech, or presentation for purposes of Section 1103(d) of the Ethics Act; accordingly, payment made for teaching such a class would not constitute an honorarium prohibited by Section 1103(d) of the Ethics Act. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. In her capacity as a Member of the Pennsylvania Senate, Senator Cappelletti is a public official subject to the Ethics Act. Section 1103(a) of the Ethics Act would not prohibit Senator Cappelletti from serving as a part-time faculty member of the Law School. However, pursuant to Section 1103(a) of the Ethics Act, Senator Cappelletti would generally be prohibited from using legislative resources in relation to her service as a part-time faculty member of the Law School. See, e.g., Dennis, Opinion 07-003; Confidential Opinion, 05-001. Based upon the submitted facts, the activity in question would constitute teaching a class at an accredited educational institution. Therefore, the compensation that would be paid to Senator Cappelletti for teaching the Course would not constitute an honorarium prohibited by Section 1103(d) of the Ethics Act. See, Confidential Opinion, 14-008. Accordingly, the Ethics Act would not prohibit Senator Cappelletti from receiving compensation for teaching the Course at the Law School as a part-time faculty member. 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, delivery service, or by Hafner, 22-505 January 27, 2022 Page 6 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. Respectfully, Brian D. Jacisin Chief Counsel