Loading...
HomeMy WebLinkAbout07-594 BrowandDavid G. Oberdick, Esquire Meyer, Unkovic & Scott 1300 Oliver Building Pittsburgh, PA 15222 -2304 Dear Mr. Oberdick: ADVICE OF COUNSEL November 14, 2007 a) County Council, by ordinance, shall establish a five member Accountability, Conduct and Ethics Commission. Individuals who believe they have been aggrieved by an action or omission of a County officer, employee or member 07 -594 This responds to your faxed transmission received October 12, 2007, by which you requested advice from the State Ethics Commission. Issue: Whether, as Members of the Accountability, Conduct and Ethics C ommission of Allegheny County, you and another individual who has authorized your request would be considered "public officials" subject to the Public Official and Employee Ethics Act ( "Ethics Act"), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests. Facts: You are a Member and Chair of the Accountability, Conduct and Ethics C ommission ( "ACE Commission ") of Allegheny County ( "County "). You have been authorized by Beatrice Browand ( "Browand "), a Member of the ACE Commission, to seek an advisory from the State Ethics Commission on her behalf. Your request for an advisory is limited to prospective conduct. You ask whether any ACE Commission Members, including Browand, would be subject to the financial disclosure and reporting requirements of the Ethics Act. You indicate that your legal counsel has advised that Members of the ACE Commission do not have the requisite power to act on behalf of the County so as to be considered subject to such requirements of the Ethics Act. It is administratively noted that Section 1.11 -1101 of the County Home Rule Charter ( "Home Rule Charter"), 302 Pa. Code § 1.11 -1101, granted the County Council the authority to establish a Code of Accountability, Conduct and Ethics for all elected and appointed County officers, employees and members of agencies. The ACE Commission was established pursuant to Section 1.11 -1102 of the Home Rule Charter, which provides in pertinent part as follows: C 1.11 -1102. Accountability, Conduct and Ethics ommission. Oberdick, 07 -594 November 14, 2007 Page 2of6 of an agency shall have the right to lodge a formal complaint. The Accountability, Conduct and Ethics Commission shall be empowered to receive complaints and investigate violations of the Code of Accountability, Conduct and Ethics by any County officer, employee or member of an agency....The Commission shall have the power of subpoena as provided in Article XIII, § 1.13- 1307.... (c) The Commission shall report its conclusions and recommendations on all complaints to County Council and the Chief Executive. 302 Pa. Code § 1.11- 1102(a), (c). Administrative notice is taken of Article XIII, Section 1.13 -1307 of the Home Rule Charter, which provides as follows: § 1.13 -1307. Subpoena Power. In any case where an elected officer or agency has the power to conduct public hearings, the elected officer or agency shall have the authority to issue subpoenas for the attendance of witnesses and to compel testimony and the production of documents and other evidence. The subpoena shall be issued in the name of the County and shall be signed by the elected officer or presiding officer of the agency. 302 Pa. Code § 1.13 -1307. You have submitted a copy of the County Accountability, Conduct and Ethics Code ( "ACE Code "). It is administratively noted that Section 104.01 of the ACE Code provides as follows: Section 104.01 Establishment of Accountability, Conduct and Ethics Commission There is hereby established a five (5) member Accountability, Conduct and Ethics Commission, hereinafter the ACE Commission. The ACE Commission generally shall be empowered to receive, investigate and make findings and recommendations concerning complaints alleging the violation of this Accountability, Conduct and Ethics Code.... Nominees shall be appointed by an affirmative vote of at least a majority of the seated members of Council. ACE Code, Section 104.01. It is further noted that Chapter 105 of the ACE Code provides for complaints to be filed with the ACE Commission and for investigations and hearings to be conducted by the ACE Commission as to alleged violations of the ACE Code. The following powers are expressly provided to the ACE Commission with respect to investigations: Section 105.03 Conduct of Investigation A. The Commission shall have the authority to conduct interviews, take statements, receive and inspect documents and records and otherwise obtain Oberdick, 07 -594 November 14, 2007 Page 3 of 6 evidence and gather information by lawful means, including subpoena power. ACE Code, Section 105.03 A. It is noted that Section 105.04 of the ACE Code provides for hearings to be conducted by the ACE Commission upon the request of a respondent. Section 105.06 of the ACE Code provides that such a hearing and the papers, records and disclosures therein are to be confidential except for the contents of what is referred to as the "final order." Lastly, it is administratively noted that Section 105.07 of the ACE Code authorizes the ACE Commission, upon a finding of wrongdoing under the provisions of the ACE Code, to make recommendations for the imposition of various sanctions /penalties and to also refer matters to law enforcement authorities for criminal prosecution when a federal or state law has been violated. 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an advice /opinion may be given only to the person whose prospective conduct is in question, his authorized representative, or, when applicable, his appointing body or employer. This advisory shall only address your prospective conduct and the prospective conduct of Browand, who has specifically authorized your inquiry on her behalf. To the extent that you have inquired as to the conduct of other Members of the ACE Commission without their express permission, you are considered a third party without legal standing. The term "public official" is defined in the Ethics Act as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102. The related terms "governmental body" and "political subdivision" are defined in the Ethics Act as follows: § 1102. Definitions "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, Oberdick, 07 -594 November 14, 2007 Page 4of6 service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa. C. S. § 1102. The regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria that are used to determine whether the advisory board exception applies: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (1) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (11) The body exercises a basic power of government and performs essential governmental functions. (111) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. (VII) The body has the power of eminent domain or condemnation. Oberdick, 07 -594 November 14, 2007 Page 5 of 6 (VIII)The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F) Members of zoning hearing boards and similar quasi - judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). 51 Pa. Code § 11.1. Status as a "public official" subject to the Ethics Act is determined by applying the above definition and criteria to the position held. The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions. Cf., Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984). The Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. Id. In applying the Ethics Act's definition of "public official," the first portion of the definition provides that a public official is a person who is: (1) elected by the public; (2) elected or appointed by a governmental body; or (3) an appointed official in the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02 -007. The fact that you and Browand were each appointed to the ACE Commission by the County Council satisfies the first portion of the definition. As for the remainder of the definition, the status of a board as either purely advisory or not purely advisory is determined by the nature of the authority conveyed to the board by its enabling legislation, regardless of whether such authority is exercised by the board. See, Williams /Pennington /Ray, Opinion 03- 002 -R. The necessary conclusion is that you and Browand would not fall within the statutory exception for members of purely advisory boards lacking authority to expend public funds other than reimbursement for personal expense or to otherwise exercise Oberdick, 07 -594 November 14, 2007 Page 6of6 the power of the State or a political subdivision. Chapter 105 of the ACE Code provides the ACE Commission with legal authority to receive complaints, conduct investigations, and hold hearings as to alleged violations of the ACE Code. Both Section 1.11 -1102 of the Home Rule Charter and Section 105.03 A of the ACE Code provide the ACE Commission with the power to issue subpoenas to compel testimony and the production of documents and other evidence. Thus, the ACE Commission is not purely advisory in that it has legal authority to exercise a basic power of government and it performs essential governmental functions. Based upon the above judicial directives, the provisions of the Ethics Act, and the Regulations and Opinions of the State Ethics Commission, the necessary conclusion is that you and Browand, in your respective capacities as the Chair and a Member of the ACE Commission, would each be considered a "public official" subject to the Ethics Act and the Regulations of the State Ethics Commission and specifically the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Conclusion: In your respective capacities as the Chair and a Member of the Accountability, Conduct and Ethics Commission ( "ACE Commission ") of Allegheny County ( "County "), you and Beatrice Browand ( "Browand ") would each be considered a "public official" subject to the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and specifically the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Accordingly, each of you must file a Statement of Financial Interests each year in which you hold the aforesaid position and the year following termination of such service. 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, Robin M. Hittie Chief Counsel