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HomeMy WebLinkAbout22-546 Jacob 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 October 27, 2022 To the Requester: Matthew Jacob 22-546 Dear Mr. Jacob: This responds to your email dated October 24, 2022, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whetherthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual employed as a Senior Enterprise Applications Administrator with the City of Pittsburgh (“City”), who will soon be leaving his City employment to begin employment as a Program Manager, Asset Management with the Pittsburgh Water and Sewer Authority, with regard to accepting royalties from sales of a book about the City steps, where the individual’s involvement in the authorship of the book would include advising on maps for the book and providing photographs for the book. Brief Answer: NO. The Ethics Act would not prohibit the individual from accepting royaltiesfrom sales of the book about the City steps because under the submitted facts, payments made to the individual that would be legitimately intended as consideration for the value of the book – such as royalties – would not constitute honoraria prohibited by Section 1103(d) of the Ethics Act. Jacob, 22-546 October 27, 2022 Page 2 Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You are currently employed as a Senior Enterprise Applications Administrator with the City. You will soon be leaving your City employment and beginning employment as a Program Manager, Asset Management with the Pittsburgh Water and Sewer Authority. You have submitted a copy of a job description for each of the aforesaid positions, which documents are incorporated herein by reference. You are involved with the authorship of a book about the City steps. The book is intended to be both historical and a travel book for a readership consisting of City residents and people interested in exploring the City. Yourcontributions to the book’s contents will be based on your knowledge of the City steps, and you will provide photographs taken on your own time using your own equipment and advise on maps for the book. Any data to be used for mapping for the book is publicly available. You state that you are not certain how, if at all, the subject matter of the book would intersect with your new position with the Pittsburgh Water and Sewer Authority, which has no responsibilities in relation to the City steps or that type of infrastructure. Royalties from sales of the book will be split three ways, and the amount of book profits to be split three ways may increase depending upon the quantity of books sold. The narrow question that is posed by your advisory request is whether royalties that would be paid to you from sales of the book about the City steps would constitute honoraria that you would be prohibited from accepting pursuant to 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(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). Jacob, 22-546 October 27, 2022 Page 3 The Ethics Act defines the term “honorarium” as follows: § 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. The statutory definition of “honorarium” 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 official’s/public employee’s private professional or occupational capacity and are not related to the public position. Sims, Order No. 1769; Confidential Opinion, 14-007; Confidential Opinion, 01-001. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. In your current capacity as a Senior Enterprise Applications Administrator for the City and in your future capacity as a Program Manager, Asset Management for the Pittsburgh Water and Sewer Authority, you would be considered a public employee subject to the restrictions of the Ethics Act. This conclusion is based upon the job descriptions for your aforesaid public positions, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official action of a non-ministerial nature with respect to one or more of the following: contracting, procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. There is no indication in the job descriptions for your aforesaid public positions or in the other submitted facts that there is any connection between either of your aforesaid public positions and the subject matter of the book on the City steps. Accordingly, you are advised that payments made to you that would be legitimately intended as consideration for the value of the book – such as royalties – would not constitute honoraria prohibited by Section 1103(d) of the Ethics Act and could be accepted by you. 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 Jacob, 22-546 October 27, 2022 Page 4 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 receivedat 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 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 Bridget K. Guilfoyle Chief Counsel