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HomeMy WebLinkAbout08-559 KERSTETTERTodd P. Kerstetter, Esquire Schlesinger & Kerstetter, LLP 545 North Second Street Shamokin, PA 17872 Dear Mr. Kerstetter: ADVICE OF COUNSEL May 30, 2008 § 303. PRELIMINARY PLAN PROCEDURES. 3. Action on Preliminary Plan. B. The Planning Commission shall either approve or disapprove the preliminary plan not later than 90 days following the date of the regular meeting of the Planning Commission next following the date the application submission is filed; provided, that should the said next regular meeting occur more than 30 days following the filing of the application, the said 90 08 -559 This responds to your letter dated April 21, 2008, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether members of a township planning commission that has the authority to approve or disapprove preliminary subdivision and land development plans would be considered "public employees" or "public officials" 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, and particularly, the requirements for filing Statements of Financial Interests. Facts: As Solicitor for Ralpho Township ( "Township ") in Northumberland County, Pennsylvania, you have been authorized by three members ( "Members ") of the Ralpho Township Planning Commission ( "Planning Commission ") to request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. The Planning Commission has all of the duties and responsibilities as set forth in the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101, et seq., and the Ralpho Township Code. Such duties include coordinating and reviewing applications for subdivision and land development plans. You have submitted a copy of Part 3 of the Township's Subdivision and Land Development Ordinance, which provides, in part, as follows: Kerstetter, 08 -559 May 30, 2008 Page 2 day period shall be measured from the thirtieth day following the date the application has been filed. Conditional approval or disapproval of the plan by the Planning Commission shall similarly set forth reasons for such actions.... C. If a plan is approved subject to certain conditions, the developer shall agree, in writing, to said conditions within 15 days of notification of such conditional approval or said conditional approval shall lapse and the plan shall be considered disapproved. G. Approval of the preliminary plan does not constitute approval of the final plan for any purpose or reason. § 305. FINAL PLAN PROCEDURES. 1. Submission of a final plan for approval by the Planning Commission shall occur not more than two years following the date of approval of the preliminary plan. Failure to submit the final plan within this period of time shall make the approval of the preliminary plan null and void unless an extension of time has been granted by the Planning Commission prior to the end of this period. 2. Except for any modifications or changes required by the Planning Commission, the final plans shall conform to the approved preliminary plan. Where, in the opinion of the Planning Commission, there have been modifications or changes, other than those required by the Planning Commission, made to the approved preliminary plan, the plan shall be submitted again as a preliminary plan. 6. Action on Final Plan by the Planning Commission. Action on the final plan shall be taken in the same manner as for preliminary plans, except no conditional approval shall be granted. Also, the Planning Commission shall give its written recommendation for approval or disapproval to the Board of Supervisors within seven days of action on the final plan. 7 Action on Final Plan by the Board of Supervisors. A. The Board of Supervisors shall either approve or disapprove the final plan .... Township Subdivision and Land Development Ordinance, §§ 303(3) B -C, G; 305(1) -(2), (6) -(7) (Emphasis added). Kerstetter, 08 -559 May 30, 2008 Page 3 You acknowledge that the Township's Subdivision and Land Development Ordinance gives the Planning Commission the power to approve or reject preliminary (as opposed to final) subdivision and land development plans. You state that despite this authority, the Planning Commission typically just makes recommendations, with the actual decision on any plan being made by the Township Board of Supervisors. The Planning Commission Members on whose behalf you have inquired have expressed concerns about filing Statements of Financial Interests ( "SFIs ") pursuant to the Ethics Act. You state that the Planning Commission Members contend that they are not pubic officials, because they consider the Planning Commission to be an advisory body. The Planning Commission Members further contend that their compensation, consisting of $50 per month from the Township, does not make them "public employees" subject to the filing requirement. You state that the Planning Commission Members would forego the $50 monthly payments if that would relieve them from any obligation to file Statements of Financial Interests. Based upon the above submitted facts, you ask whether the Planning Commission Members on whose behalf you have inquired would be considered "public employees" or "public officials" subject to the requirements for filing SFIs pursuant to the Ethics Act. Administrative notice is taken of the following provision of the Pennsylvania Municipalities Planning Code: § 10501. Grant of power The governing body of each municipality may regulate subdivisions and land development within the municipality by enacting a subdivision and land development ordinance. The ordinance shall require that all subdivision and land development plats of land situated within the municipality shall be submitted for approval to the governing body or, in lieu thereof, to a planning agency designated in the ordinance for this purpose, in which case any planning agency action shall be considered as action of the governing body.... 53 P.S. § 10501. 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. You have asked whether the Planning Commission Members would be considered "public employees" or "public officials' required to file SFIs pursuant to the Ethics Act. This advisory is limited to addressing your questions with respect to the three particular Members of the Planning Commission who have authorized your inquiry, referred to herein as the "Planning Commission Members." You are advised that in order to be a "public employee" subject to the Ethics Act, an individual must stand in an employer - employee relationship with the Commonwealth or a political subdivision of the Commonwealth. Eiben, Opinion 04 -002; Ver Ellen, Opinion 03 -005. Based upon the submitted facts, the Planning Commission Members Kerstetter, 08 -559 May 30, 2008 Page 4 are not employees of the Planning Commission. Therefore, the Planning Commission Members would not be considered "public employees" as that term is defined in the Ethics Act. In considering whether the Planning Commission Members would be considered "public officials" subject to the requirements for filing SFIs pursuant to the Ethics Act, it is noted that the Ethics Act defines the term "public official" 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 regulations of the State Ethics Commission 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. (II) The body exercises a basic power of government and performs essential governmental functions. (III) 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. Kerstetter, 08 -559 May 30, 2008 Page 5 (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. (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. The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, 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. Kerstetter, 08 -559 May 30, 2008 Page 6 65 Pa.C.S. § 1102. In applying the Ethics Act's definition of the term "public official," the first portion of the definition provides that a public official is a "person' (defined to include, inter alia, an individual, corporation or firm) which 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. When the first portion of the definition is met, status as a public official subject to the Ethics Act is established, unless the exclusion for members of purely advisory boards is applicable. Eiben, Opinion 04 -002. The analysis of whether a given individual is a public official subject to the Ethics Act necessarily focuses upon the office itself and not on the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying a position may carry out those functions. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Muller, Order No. 047 -S; Reese, Order No. 048 -S. In the instant matter, the necessary conclusion is that the Planning Commission Members are "public officials" subject to the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. See, Stokes, Advice 06 -595. The Planning Commission would not be considered a purely advisory body because the Township Subdivision and Land Development Ordinance provides that the Planning Commission may approve or disapprove preliminary subdivision and land development plans. In approving or disapproving preliminary plans, the Planning Commission has the g power to make independent decisions that are effective without approval of the overning authority. See, 51 Pa. Code § 11.1 (definition of "public official") (i)(B)(V). Such authority clearly meets the definition and the criteria by which status as a "public official" is determined. Therefore, the Planning Commission Members are considered "public officials" subject to the Ethics Act and the Regulations of the State Ethics Commission, and they are required to file Statements of Financial Interests pursuant to the Ethics Act. Conclusion: Based upon the submitted fact that the Ralpho Township Planning Commission ( "Planning Commission ") has the authority to approve or disapprove preliminary subdivision and land development plans, the Planning Commission Members on whose behalf you have inquired are 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 Pennsylvania State Ethics Commission. Accordingly, each of the Planning Commission Members must file a Statement of Financial Interests each year in which the position is held and the year following termination of such service. 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. Kerstetter, 08 -559 May 30, 2008 Page 7 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