Loading...
HomeMy WebLinkAbout24-002 ConfidentialPHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIWLE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUIILDING WEBSi-rE: www.ethics.t7a.gov 6113 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 INION OW T111"IJ COMMISSION Before: Michael A. Schwartz, Chair David L. Reddecliff, Acting Vice Chair Paul E. Parsells Robert P. Caruso Thomas E. Leipold DATE DECIDED: 10/22/2024 DATE MAILED: 10/23/2024 To the Requester: This responds to your letter dated October 4, 2024, by which you requested a confidential advisory opinion from this Commission.1 I. ISSUE: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa,C.S. § 1101 et sM,, would impose prohibitions or restrictions upon [Person], [Officer] of [the Governmental Unit] [("the Officer")], with regard to accepting royalties or another form of remuneration for authoring and having published a book on [a Topic], where: (1) the book would focus on [Certain Matters]; (2) the book would include an examination of some of the key [Types of Decisions] made by [the Officer] and a discussion of [a Particular Matter]; (3) the book would include discussion of events and experiences related to [the Officer's] public service in prior public positions; (4) the book would include discussion of [the Officer's] political activity and [Types of Experiences]; and (5) the book would not include discussion of events pertaining to [the Officer's] work and service as [the Officer] beyond references to that position as a mere "backdrop," consistent with this Commission's past decisions, 11. FACTUAL BASIS FOR DETERMINATION: You request a confidential advisory opinion from this Commission based upon submitted facts that inay be fairly summarized as follows, I Commissioner Emilia McKee Vassallo recused herself from this matter and did not participate in the deliberations involving this request. Confidential Opinion, 24-002 October 23, 2024 Page 2 You have served as [the Officer] since [Month, Year]. Before you began serving in your current public position as [the Officer], you held the following public positions, hereinafter collectively referred to as "your prior public positions": (1) Mcniber of [Governmental Body 11 from [Date] to [Date]; (2) Member of [Governmental Body 2] from [Date] to [Date], which included [Number of Years] of service as [Position] of [Governmental Body 2]; and (3) [Official] of [the Governmental Unit] from [Date] through [Date]. You are in the process of engaging a publisher to publish a book on [a Topic] that you plan to write. The book will focus on [Certain Matters]. In the book you will examine some of the key [Types of Decisions] that you have made throughout your life and how you [Acted in a Certain Manner] in those moments. You will also discuss [a Particular Relationship] and [a Particular Issue]. In the book you will consider pivotal experiences in your life, including events that occurred during your public service in your prior public positions. You will not discuss events that pertain to your work and service as [thc Officer] beyond references to that position as a mere "backdrop," such as minimal and incidental references that are not a subject matter of the book, consistent with this Corrimission's past decisions. Based upon the above submitted facts, the following questions are posed by your advisory request: (1) Whether the Ethics Act would impose prohibitions or restrictions upon you with regard to accepting royalties or another form of remuneration for the publication of your book if it would include discussion of events and experiences related to your prior public positions; and (2) Whether the Ethics Act would impose prohibitions or restrictions upon you with regard to accepting royalties or another form of remuneration for the publication of your book if it Would include discussion of your political activity and [Types of Experiences]. By letter dated October 16, 2024, you were notified of the date and time of the executive teleconference meeting at which your advisory opinion request would be considered. At the executive meeting on October 22, 2024, the following individuals appeared on your behalf. [Individual 1], [Individual 2], and [Individual 3]. [Individual 11 offered commentary consistent with the facts set forth in your advisory opinion request. She also provided further details about your pre -public service life following your graduation from [Type of School] and before you began serving as a Member of [Governmental Body 11 in [Year], Discussion: It is initially noted that Pursuant to Sections 1107(1 O) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 11 07(l 0), (11), Opinions are issued to the requester based upon the facts that the requester has submitted. In issuing a ruling based upon the facts that the requester has submitted, Confidential Ophiim, 24-002 October 23, 2024 Page 3 this 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 Opinion only affords a defense to the extent the requester has truthfully disclosed all material facts. As [the Officer], you are a public official subject to the provisions of the Ethics Act, Section 1103(d) of the Ethics Act prohibits a public official/public employee from accepting an honorarium: § 1103. Restricted activities. (d) Honoi-arium.—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 "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 rninimis economic impact. 65 Pa.C.S. § 1102. The question of whether a given payment is an honorarium prohibited by Section I I 03(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) the services are undertaken in the public official's/public employee's private professional or occupational capacity and are not related to the public position. Confidential Qnipion, 14-007; Confidential 012inio , 13-005; Confidential Opinion, 0 1 -00 1. Section I 103(d) only applies if there is a nexus to the government work or if there is a payment that is not actual. consideration for the value of the services. See, Fiorello, supra; Confidential _Qpjnion, 18-004. In considering the questions presented by your advisory request, a review of the principles established by several of our prior decisions involving honoraria is instructive. Confidential Opinion, 24-002 OctobN- 23, 2024 Page 4 In Confidential 0 inion, 14-007, we held that —subject to the condition that the transaction in question in that matter would be an "arnis-length" marketplace transaction for commercially reasonable terms —the compensation a State Legislator would receive from a publisher for authoring a book about his public and private life would not constitute an honorariun-i where the relevant facts included, inter alia, that: (1) portion(s) of the State Legislator's proposed book would relate to his experiences as a State Legislator but would not include any confidential information received through his holding public office; and (2) the portions of the book relating to the State Legislator's experiences as a State Legislator would be only a fraction of the overall work encompassing both his public and private life, and in those portions, the General Assembly would be more like a "backdrop" against which lie would describe his interactions with Members of the General Assembly and staff on a personal and professional level than the story itself. In contrast, in Confidential Opinion, 18-004, we found a connection/nexus between a State Legislator's proposed book and the State Legislator's public position as a State Legislator where: (1) the subject matter of the proposed book was a legislative topic/concern; (2) the proposed book would contain the State Legislator's proposal(s) and his suggestions for potential legislative changes that would aid in improving the subject topic/concern; and (3) the proposed book would likely discuss pieces of legislation authored by the State Legislator or other State Legislators. We held that any payment(s) to the State Legislator in recognition of the book —including but not limited to royalties from salc(s) of the book —would constitute prohibited honoraria pursuant to Section 1103 (d) of the Ethics Act. In Sims, Order No. 1769, we concluded that State Representative Brian Sims ("Sims") did not violate Section I I 03(d) of the Ethics Act as to the allegation that he solicited and/or accepted Honoraria in association with appearances/presentations/speeches pertaining to LGBT issues and legislation, as the payments he received for his appearances/presentations/speeches were consideration for the value of such services which were nonpublic occupational or professional in nature, and therefore were excluded from the Ethics Act's definition of "honorarium." In reaching our conclusion, we noted, in pertinent part, that: (1) Sims' private occupation was that of a paid professional speaker/lecturer on LGBT issues, and his expertise in civil riglits/diversity/LGBT issues was founded on his own story and years of experience as an LGBT activist and leader of LGTB organizations; (2) the purpose for Sims' speeches was to explain his own experiences and the lessons that lie learned in a way that others could learn some of those lessons; (3) the capacity in which Sims was invited to speak was as a gay, prominent civil rights activist; (,4) the status of LGBT-related legislation was only a small part of Sims' speeches, and LGBT-related legislation had been a significant focus of Sims' work prior to, taking office; and (5) the General Assembly was a "backdrop" against which Sims described his interactions with Members of the General Assembly. Lastly, in Confidential Opinion, 20-001, based upon the above and other precedents, we determined that: [T]o avoid transgressing Section I I 03(d) of the Ethics Act, 65 Pa.C. S, § I I 03(d), references by a public official/public employee to his public position in the context of a paid speaking engagement/presentation, appearance, or published work must be limited to a inere "backdrop" --that is minimal and incidental and not a subject Confidential Opinion, 24-0102 October 23, 2024 Page 5 matter of the paid speaking engagernent/presentation, appearance, or published work, A mere backdrop provides a setting without providing subject matter content. For example, merely identifying the public office or anecdotally describing one's relationships with other public officials without delving into the activities of the public office would constitute a mere backdrop. Confidential Opinion, 20-001, at 5. We held that payments/compensation that a public official — who had taken his public office following a career in the private sector —would receive in relation to a proposed book about his personal life and career would constitute prohibited honoraria if references to the public official's public office would go beyond a mere "backdrop" and, for example, would include as a subject matter the activities of his public office, such as decisions he made as a public official while in public office. We noted that planned references in the book to The public official's public office would not be limited to a "mere backdrop" where portions of the book would encompass the public official's experiences as a public official, the book would include chapters discussing the public official's service in public office, and the book would include decisions the public official made while in public office. Notably, in each of our prior decisions referenced above, this Conunission was tasked with determining whether there was a connectionJnexus, between a public official's current public position and a speaking engagement/presentation, appearance, or published work, such that a payment for the speaking engagement/presentation, appearance, or published work would be an honorarium prohibited by Section I I 03(d) of the Ethics Act. It is a matter of first impression for this Commission to address the potential applicability of Section 1103(d) where a speaking engagement/presentation, appearance, or public work is not related to the public official's/public employee's current public position but rather is related to a oral for public position held by the public official/public employee. Section 11 03(d) of the Ethics Act applies to current public officials/public employees and does not apply to former public officials/public employees. A current public official/public employee who makes a speech, presentation, or appearance or publishes a work related solely to a prior public position that was held engages in such activity in the capacity of a former public official/public employee as to the prior public position rather than in the capacity of a current public official/public employee as to the current public position. As such, it is our view that Section 1103(d) of the Ethics Act only applies if there is a connectionJnexus between a speaking engagernent/presentation, appearance, or published work and a public official's/public, employee's current public position or if there is a payment that is not actual consideration for the value of the services. The purpose underlying the honorarium prohibition is to ensure that public officials/public employees do not benefit financially from a speaking engagement/presentation, appearance, or published work related to their current public employment for which they are already being compensated through the payment of a salary or hourly wage. In other words, the restriction on receipt of honorarium is designed to prevent double-dipping by the public official/public employee. This underlying purpose further supports our conclusion that Section 1103(d) of the Ethics Act is meant to restrict public official s/public employees, only insofar as their speaking Confidential %inion, 24-002 October 23, 20 4 Page 6 engagements or written works relate to their current public employment rather than public positions they may have held in the past. In the instant matter, the submitted facts provide that your book would include discussion of your political activity, your [Type of Experiences], and events and experiences related to your prior public positions and not to your current public position as [the Officer]. To that extent, there would not be a connection/nexus between your book and your current public position as [the Officer], Subject to the condition that any references in the book to your public office as [the Officer] would not go beyond a mere "backdrop," royalties or other remuneration related to authoring the book that would be legitimately intended as consideration for the value of the book would not constitute prohibited honoraria and could be accepted by you. Conclusion: As [the Officer], you are a public official subject to the provisions of the Ethics Act. Section 1103(d) of the Ethics Act prohibits a public official/public employee from accepting an "honorarium" as that term is defined in Section 1102 of the Ethics Act. Section I I 03(d) of the Ethics Act only applies if there is a connection/nexus between a speaking engagement/ presentation, appearance, or published work and a public official's/public employee's current public position or if there is a payment that is not actual consideration for the value of the services. In the instant matter, the submitted facts provide that your book would include discussion of your political activity, your [Type of Experiences], and events and experiences related to your prior public positions and not to your current public position as [the Officer]. To that extent, there would not be a connection/nexus between your book and your current public position as [the Officer]. Subject to the condition that any references in the book to your public office as [the Officer] would not go beyond a mere "backdrop," royalties or other remuneration related to authoring the book that would be legitimately intended as consideration for the value of the book would not constitute prohibited honoraria and could be accepted by you. The propriety of the proposed course of conduct has only been addressed under the Ethics Act., Pursuant to Section 1107(10) of the Ethics Act, 65 Pa.C.S. § 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. By the Commission, Michael A. Schwartz Chair