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HomeMy WebLinkAbout09-533 DittmanThomas M. Dittman 4106 Verner Court Murrysville, PA 15668 -1234 Dear Mr. Dittman: ADVICE OF COUNSEL March 31, 2009 This responds to your letters dated January 21, 2009, and February 10, 2009, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether as a Member of the Parks and Recreation Commission of the Municipality of Murrysville, Pennsylvania, you would be considered a "public official" 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 seek a determination as to whether, in your capacity as a Member of the Parks and Recreation Commission of the Municipality of Murrysville ("Murrysville "), Pennsylvania, you are a "public official" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. You specifically question whether you are required to file Statements of Financial Interests. You have submitted a copy of Section 3 -43 of the Administrative Code of the Municipality of Murrysville ( "Murrysville Code "), which provides, in part, as follows: § 3 -43 Parks and Recreation Commission. A. Function. The Parks and Recreation Commission shall make recommendations to Council, the Mayor and the Chief Administrator pertaining to recreation programs and the purchase, development, maintenance, proposed uses, supervision and regulation of public park and recreation areas and facilities located in the Municipality. C. Duties. The duties of the Parks and Recreation Commission shall be to: (1) Act in an advisory capacity in matters relating to parks and recreation. 09 -533 Dittman, 09 -533 March 31, 2009 Page 2 (2) Cooperate with other governmental agencies and civic groups to advance the development of parks and recreation programs in the Municipality. (3) Recommend policies pertaining to all municipal parks and recreation matters within the Municipality. (4) Define the objectives of public park and recreation services and recommend plans and general policies harmonizing with them. (5) Make recommendations concerning a comprehensive system of recreation and park areas, facilities and programs to meet the needs of residents of the Municipality. (6) Review and make recommendations concerning problems of development of recreation areas, facilities, programs and improved recreation services. (7) Make recommendations on rules and regulations and practices concerning the utilization of programs and facilities and the schedule of fees for programs and facilities. (8) Maintain and update annually a master plan of parks, recreation areas and facilities within the Municipality, and such plan shall include parks or recreation areas or facilities which may have been laid out but not opened. Provide to Council and the Mayor an annual report which shall include but not be limited to a budget and an analysis of the community recreation areas, facilities and leadership within the Municipality with particular reference to the extent and adequacy of its programs and its effectiveness in view of the public expenditures involved and public needs to be met. ( (10) Hold public meetings for citizen input. D. Review and recommendations regarding proposed recreation and park areas. All subdivision plans hereafter proposed which contain areas for public parks shall, in addition to meeting requirements of ordinances and law, be submitted to the Parks and Recreation Commission for review and recommendations regarding the parks therein Dittman, 09 -533 March 31, 2009 Page 3 contained. The location of existing parks, recreation areas and facilities shall not be altered without the review and recommendations of the Commission. No map or plot plan of or showing a proposed park, playground, recreational area or facility shall be approved for recording by the Municipality without review and recommendations by the Commission. Murrysville Code, § 3 -43. Members of the Parks and Recreation Commission are appointed by the Murrysville Council. Id. You state that the Parks and Recreation Commission has no power to direct expenditures and only makes recommendations. 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. 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 similarly define the term "public official" and set forth the following additional criteria: (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: Dittman, 09 -533 March 31, 2009 Page 4 51 Pa. Code § 11.1. (I) 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. (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). Dittman, 09 -533 March 31, 2009 Page 5 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: (1) is elected by the public; (2) is elected or appointed by a governmental body; or (3) is an appointed official in the executive, legislative, or judicial branch of the Commonwealth or a political subdivision of the Commonwealth. Muscalus, Opinion 02 -007. The fact that you were appointed to the Parks and Recreation Commission by the Murrysville Council satisfies the first portion of the definition. The remaining question is whether the exclusion for members of purely advisory boards is applicable to you. In reviewing the duties of the Parks and Recreation Commission as delineated by Section 3 -43 of the Murrysville Code, only the duty of the Parks and Recreation Commission to "[ ]rovide to Council and the Mayor an annual report which shall include but not be limited to a budget..." (see, Section 3 -43, C(9)) could be construed as going beyond a purely advisory function. Subject to the condition that the Parks and Recreation Commission has no power to direct the expenditure of funds through a budget or otherwise, you would 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 the power of the State or a political subdivision. Accordingly, you are advised that subject to the aforesaid condition, in your capacity as a Member of the Parks and Recreation Commission, you are not a "public official" as that term is defined in the Ethics Act, and you are not required to file Statements of Financial Interests pursuant to the disclosure requirements of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts, and subject to the condition that the Parks and Recreation Commission of the Municipality of Murrysville ( "Murrysville "), Pennsylvania, has no power to direct the expenditure of funds through a budget or otherwise, you are advised that in your capacity as a Member of the Parks and Recreation Commission, you are not a "public official" as that term is defined by the Public Official and Employee Ethics Act ( "Ethics Act "), and you are not required to file Statements of Financial Interests pursuant to the disclosure requirements of the Ethics Act. 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. 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 Dittman, 09 -533 March 31, 2009 Page 6 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