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HomeMy WebLinkAbout25-520 Confidential 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 April 21, 2025 To the Requester: 25-520 This responds to your letter dated April 7, 2025, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: WhetherSection 1103(d) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(d), which prohibits a public official/public employee from accepting an honorarium, would prohibit an \[Elected Official\] from accepting: (1) payment from a \[Type of Entity\] for travel and accommodation expenses related to the \[Elected Official’s\] attendance at an awards ceremonyheld by the \[Type of Entity\]; or (2) additional seats at the awardsceremony for the \[Elected Official’s\]guests. Brief Answer: NO. Neither payment for the \[Elected Official’s\]travel and accommodation expensesrelated to the \[Elected Official’s\]attendance at the awards ceremony nor additional seats at the awards ceremony for the \[Elected Official’s\]guests would constitute an “honorarium” as that term is defined by the Ethics Act. Therefore, Section 1103(d) of the Ethics Act would not prohibit the \[Elected Official\]from accepting payment for the travel and accommodation expenses and the additional seats at the awards ceremony. Facts: You request a confidential advisory from the Commission on behalf of a \[Type of Elected Official\] (“the Elected Official”). You have submitted facts that may be fairly summarized as follows. Confidential Advice, 25-520 April 21, 2025 Page 2 Each year a \[Type of Entity\] (“the Entity”) that\[Engages in a Certain Activity\] nominates a \[Type of Individuals\] for an award. The award honors \[Individuals Who Demonstrate Certain Character Traits\]. In order to accept the nomination, a nominee must agree to attend theEntity’s awards ceremony. Once the list of nominees is publicly revealed, the public may submit votes online. The nominee with the most votes receives the award at the Entity’s awards ceremony. The Elected Official was nominated for the Entity’s award earlier this year. In order to accept the nomination, the Elected Official agreed to attend the Entity’s awards ceremony. Public voting on the nominees ended on \[Date\], and the winner was announced in the following week. The Elected Official was not the winner of the Entity’s award. The Entity’s awards ceremony will take place in \[Month, Year\]. As part of hosting the awards ceremony, the Entity offered all nominees payment for the costs of travel to and from, and accommodations at, the awards ceremony. The Entity also offered all nominees additional seats at the awards ceremony for any guests of the nominees. Based upon the above submitted facts, you ask whether Section 1103(d) of the Ethics Act, which prohibits a public official/public employee from accepting an honorarium, would prohibit the Elected Official from accepting: (1) payment from the Entity for travel and accommodation expenses related to the Elected Official’s attendance at the Entity’s awards ceremony; or (2) additional seats at the Entity’s awards ceremony for the Elected Official’s guests. 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 Confidential Advice, 25-520 April 21, 2025 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. Section 1103(d) of the Ethics Act is an absolute prohibition against accepting honoraria. 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. As a \[Type of Elected Official\], the Elected Official is a public official subject to the provisions of the Ethics Act. Neither the Entity’s payment of the Elected Official’s travel and accommodation expenses related to the Elected Official’s attendance at the Entity’s awards ceremony nor additional seats at the Entity’s awards ceremony for the Elected Official’s guests would constitute an “honorarium” as that term is defined by the Ethics Act because neither the payment of the travel and accommodation expenses nor the additional seats would be considered a “payment made in recognition” of the Elected Official’s attendance at the Entity’s awards ceremony. Therefore, Section 1103(d) of the Ethics Act would not prohibit the Elected Official from accepting payment from the Entityfor the Elected Official’s travel and accommodation expenses related to her attendance at the Entity’s awards ceremony or additional seats at the Entity’s awards ceremony for her guests. 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. Confidential Advice, 25-520 April 21, 2025 Page 4 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