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HomeMy WebLinkAbout24-561 CohenPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Taya R. Cohen, PhD Dear Dr. Cohen: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL September 11, 2024 24-561 This responds to your email received August 16, 2024, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Facts: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving as a Member of the Ethics Hearing Board of the City of Pittsburgh, who in a private capacity is a Professor of Organizational Behavior and Business Ethics at Carnegie Mellon University's Tepper School of Business, with regard to accepting payment for speeches given in her private capacity on topics such as honesty, morality, and other group psychology dynamics. Brief Answer: NO. The Ethics Act would not prohibit the individual from accepting payment for speeches given in her private capacity on topics such as honesty, morality, and other group psychology dynamics because under the submitted facts, payments made to the individual that would be legitimately intended as consideration for the value of the speeches would not constitute honoraria prohibited by Section 1103(d) of the Ethics Act. You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. Cohen, 24-561 September 11, 2024 Page 2 You are under consideration to fill a vacancy on the Ethics Hearing Board of the City of Pittsburgh ("City"). You have an undergraduate degree in psychology and graduate degrees, including a PhD, in social psychology. You are a Professor of Organizational Behavior and Business Ethics at Carnegie Mellon University's Tepper School of Business, where you teach graduate -level courses and executive education seminars on organizational behavior and negotiation. Your faculty research is focused on honesty, moral character, negotiation, and conflict management. As part of your faculty research, you are a co -director of the Collaboration and Conflict Research Lab, where you manage an active lab of doctoral students and post -doctoral research fellows working toward advancing applied and basic research on conflict, negotiation, and moral behavior. You have published your work in top management and psychology j ournals, and you serve on editorial review boards for a number of journals in your field. You are a registered speaker with the Las Vegas Speakers Bureau, and you have been compensated to speak on a variety of topics, including honesty, morality, and other group psychology dynamics. You ask whether, if you would become a Member of the City Ethics Hearing Board, payments that would be made to you for speeches given in your private capacity 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). The Ethics Act defines the term "honorarium" as follows: § 1102. Definitions Cohen, 24-561 September 11, 2024 Page 3 "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 question of whether a given payment is an honorarium prohibited by Section 1103(d) is determined by an application of the statutory definition set forth in the Ethics Act, not by the mere label that may have been attached to the payment. Fiorello, Order No. 1363; Confidential Opinion, 14-007; Confidential Opinion, 01-001. 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. In Baker, Opinion 91-004, the Commission set forth the following criteria for determining whether the exclusion in the statutory definition of the term "honorarium" applies in any given instance: the private occupation of the public official/public employee; the expertise of the public official/public employee in the area; the history of activity in the occupation prior to public service; the purpose for the invitation; the capacity in which the public official/public employee is invited; the subject of the speech, work or presentation; the group spoken to and the composition as to members or non-members of the group; the purpose for gathering the group; the amount of the fee relative to the services performed; the source of the invitation; the event at which the speech is given; the subject matter of the speech or published work as compared to the normal subject matter dealt with by the occupational/professional group; and any other relevant factors. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. If you would become a Member of the City Ethics Hearing Board, you would in that capacity be a public official subject to the provisions of the Ethics Act. In applying the relevant criteria set forth by the Commission in Baker, supra, to the submitted facts, it is clear that speeches you would give on a topic or topics related to the fields of organizational behavior, psychology, and business ethics such as speeches on honesty, morality, and other group psychology dynamics would be given in your private capacity as a Professor and not in your public capacity as a Member of the City Ethics Hearing Board. Therefore, any payment that would be legitimately intended as consideration for the value of such a speech would not constitute an "honorarium" as that term is defined by the Ethics Act, and you would be permitted to accept such payment. Cohen, 24-561 September 11, 2024 Page 4 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 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