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HomeMy WebLinkAbout06-506-CL CONFIDENTIALADVICE OF COUNSEL March 8, 2006 06 -506 -C L Re: Conflict; Public Official /Employee; Legislator; General Assembly; Honorarium; Clarification; Advice of Counsel, 06 -506. This responds to your letter of December 16, 2005, by which you requested a confidential clarifying advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon a member of the General Assembly who is also an attorney with regard to entering into a contract with a corporation to visit legislatures and legislators from other states and inform them of Pennsylvania's efforts to pass a statute limiting the A. Facts: By letter dated December 16, 2005, you initially sought an advisory from the tate Ethics Commission. In response to your request, Confidential, Advice 06 -506 was issued to you on January 11, 2006, which Advice is incorporated herein by reference. On February 3, 2006, you submitted a request for clarification wherein you framed the issue as follows: "[W]hether a state legislator would violate §1103(a) of the Public Official and Employee Ethics Act by entering into a contract with a corporation doing business in Pennsylvania when the corporation has a registered lobbyist and the purpose of the contract is for the legislator to visit other state's legislatures and legislators to inform them of Pennsylvania's efforts to pass a statute limiting the A. Is this an "improper" use of his position as a public official under the Act ?" Request Letter, at 1. By way of background, you note that such corporation successfully lobbied for passage of a law in Pennsylvania limiting A, which law was subsequently held unconstitutional by the Pennsylvania Supreme Court. You state that it is widely rumored that the corporation will make another effort to have this type of legislation passed in the future. Confidential Advice, 06- 506 -CL March 8, 2006 Page 2 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. As a Member of the Pennsylvania General Assembly, the Legislator on whose behalf you seek this advisory is a public official 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 (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. Confidential Advice, 06- 506 -CL March 8, 2006 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. In applying the above provisions of the Ethics Act to the circumstances which you have submitted, pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. A public official /public employee is not prohibited from outside business activities provided there is no use of the authority of office or confidential information obtained by being in the public position for a prohibited private pecuniary benefit. Pancoe, Opinion No. 89 -011. Section 1103(d) is an absolute prohibition against accepting honoraria. Pursuant to Section 1103(d), a public official /public employee may not accept an honorarium even in order to defer it to an educational or charitable purpose. Richardson, Opinion No. 93 -006. In determining whether a particular payment is an honorarium prohibited under Section 1103(d) of the Ethics Act, the threshold issue is whether the payment falls within the types of payments specified in the definition of "honorarium" as set forth in the Ethics Act. If not, Section 1103(d) does not apply. If so, the remaining issue to be addressed is whether the exception set forth in the statutory definition applies. See, Baker, Opinion 91 -004. To resolve the latter issue, the Commission applies certain criteria including 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. Legitimate payments intended as consideration for services relative to speaking engagements, appearances, presentations, or published works undertaken in the Legislator's capacity as a Legislator and unrelated to his /her public position would not constitute "honoraria" under the definition of the Ethics Act. Such payments would therefore would not be prohibited by Section 1103(d). Baker, supra. In the instant matter, it is clear under the facts that you have submitted that the proposed presentations would be given in the Legislator's capacity as a Member of the General Assembly as opposed to his /her private professional capacity. The Legislator's presentations would relate to the General Assembly's efforts to pass a statute limiting the A and thus would be public in nature so that the payment(s) in question would be an honorarium prohibited by Section 1103(d) of the Ethics Act. See, Fiorello, Order 1363. Confidential Advice, 06- 506 -CL March 8, 2006 Page 4 This Advice is based upon the facts which 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 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 Legislative Code of Conduct. Conclusion: As a Member of the Pennsylvania General Assembly, the Legislator on whose behalf you seek this advisory is a public official subject to the provisions of the Public Official and Employee Ethics Act "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 prohibit the Legislator from receiving payment(s) for presentations given in the Legislator's capacity as a Member of the General Assembly. 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 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. Sincerely, Vincent J. Dopko Chief Counsel