Loading...
HomeMy WebLinkAbout05-523 ConfidentialADVICE OF COUNSEL March 21, 2005 05 -523 Re: Conflict; Public Employee; Honorarium; State Employee A; Commonwealth of Pennsylvania Department B; Bureau C; Payments for Presentations in Private Capacity Unrelated to Public Position; D. This responds to your letter dated February 17, 2005, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., would present any prohibition or restrictions upon a State Employee A for the Commonwealth of Pennsylvania Department B with regard to accepting payments for presentations unrelated to his public position that he would provide in his private capacity as a D. Facts: You are a State Employee A for the Commonwealth of Pennsylvania Department B ( "Department "), Bureau C ( "Bureau "). You are responsible for managing the Department's E Programs. You report directly to the Bureau Director. You have submitted copies of yourjob description and the Bureau's organizational chart, which documents are incorporated herein by reference. A copy of yourjob classification specifications has been obtained, which document is also incorporated herein by reference. Per your job description and job classification specifications, your job is a management position with responsibilities including, inter alia, the following: [description of job duties /responsibilities]. In a separate capacity, you are a D, having received training from University F, University G, and Organization H. You state that you received no remuneration other than travel and per diem expenses in regard to that training, and that all of your expenses for the training were paid for by University F. You further state that you utilized Commonwealth leave time to attend the training. You would like to participate in the role of group leader, leading an I support group in a research study entitled J. You have submitted a copy of the program description outlining the J study, which is incorporated herein by reference. It is noted that the J study is designed to [session goals]. You note that you are an I yourself. As a group leader, you would lead a group of Is once a week for two hours each week from [dates]. You state that all of the training Confidential Advice, 05 -523 March 21, 2005 Page 2 sessions would occur during non - working hours, generally 6:00 p.m. to 9:00 p.m. You further state that any preparation on your part would also take place during non - working hours. Your preparation time would consist of about 5 hours for each hour of presentation time. At the completion of the [date] session, you would receive [dollar amount] for conducting the weekly sessions. You would then provide the training free of charge to other members of the local I support group, if approved by University F, University G, and Organization H. You state that your job with the Department does not include any activity that the Department has, if any, with University F, University G, and Organization H. You pose the following questions: (1) Whether, pursuant to the Ethics Act, you may participate in the J program and receive payment as delineated above as a J group leader; and (2) If such payment would be prohibited by the Ethics Act, whether you may contribute any payment that you receive to a 501(c)(3) charitable organization. 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 of the 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 of the material facts. Based upon the submitted facts and conditioned upon the assumption that the Commonwealth of Pennsylvania, and the Department and Bureau specifically, had no involvement with and bore no expense for your training as a D, you are in that role acting in a private capacity that is separate and distinct from your capacity with the Commonwealth of Pennsylvania. In your Commonwealth employment position as a State EmployeeAforthe Bureau, you are a "public employee" subject to the provisions of the Ethics Act. 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). Section 1103(d) of the Ethics Act provides: §1103. Restricted activities Confidential Advice, 05 -523 March 21, 2005 Page 3 (d) Honorarium. - -No public official or public employee shall accept an honorarium. 65 Pa.C.S. §1103(d). The following terms 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. "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. "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. In applying the above provisions of the Ethics Act to your inquiry, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interest does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position - -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity (Gorman, Order 1041; Rembold, Order 1303; Wilcox, Order 1306), or private customer(s) /client(s) (Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010). A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89 -002. In each instance of a conflict of interest, the public official /public employee would be required to abstain from Confidential Advice, 05 -523 March 21, 2005 Page 4 participation and to satisfy the disclosure requirements of Section 1103(j) set forth above. Under the facts that you have submitted, Section 1103(a) of the Ethics Act would not preclude you from outside employment /business activity as a D subject to the restrictions and qualifications as noted above. Section 1103(d) of the Ethics Act is an absolute prohibition against accepting honoraria. Pursuant to Section 1103(d) of the Ethics Act, a public official /public employee may not accept an honorarium even in order to defer it to an educational or charitable purpose. Richardson, Opinion 93 -006. However, the question of whether a given payment is an honorarium prohibited by Section 1103(d) is to be determined as a matter of law 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. Confidential Opinion, 01 -001. The statutory definition of "honorarium" generally includes payments made in recognition of speaking engagements /presentations, appearances, and published works, but excludes such payments if they are legitimately intended as consideration for the value of such services undertaken in the public official's /public employee's private professional or occupational capacity and are not related to the public position. Id. In Baker, Opinion 91 -004, the State Ethics Commission set forth criteria for determining whether the exclusion applies in any given instance, which criteria include the following: 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. Baker, supra; see also, Confidential Opinion, 01 -001. Legitimate payments intended as consideration for services relative to presentations undertaken in your capacity as a D and unrelated to your public position would not constitute "honoraria" as defined by the Ethics Act. Such payments would therefore not be prohibited by Section 1103(d) of the Ethics Act. Baker, supra. In response to your first question, it is clear under the facts that you have submitted that the proposed presentations would be given in your capacity as a D as opposed to your public capacity. Specifically, it is clear that you would be leading an I support group in sessions designed to [session goals], which activity would be unrelated to your Commonwealth position. Additionally, the [dollar amount] payment would not be unreasonable given the amount of preparation time and the frequency and length of the sessions. Therefore, the [dollar amount] payment that you would receive as a J group leader would not be a prohibited honorarium, and you would be permitted to accept it subject to the restrictions of Section 1103(a) set forth above. Given that the payment in question would not be considered an honorarium, your second specific inquiry need not be addressed. This Advice is based upon the facts that have been submitted and is limited to addressing the applicability of Sections 1103(a) and 1103(d) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Confidential Advice, 05 -523 March 21, 2005 Page 5 Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the K or other restrictions pertaining to supplemental employment /business activities of Commonwealth employees. Conclusion: As a State Employee A for the Commonwealth of Pennsylvania Department B, Bureau C, you are a "public employee" subject to the provisions of the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. §1101 et seq. Section 1103(d) of the Ethics Act, which provides that no public official or public employee shall accept an honorarium, would not prohibit you from receiving legitimate payments intended as consideration for services relative to presentations undertaken in your private capacity as a D and unrelated to your public position. Such payments would not constitute "honoraria" under the definition of the Ethics Act and could be accepted subject to the restrictions of Section 1103(a) of the Ethics Act set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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 requestor 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. Sincerely, Vincent J. Dopko Chief Counsel