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HomeMy WebLinkAbout09-521 McWreathKenneth L. Baker, Esquire Peacock Keller & Ecker, LLP 70 East Beau Street Washington, PA 15301 Dear Mr. Baker: ADVICE OF COUNSEL March 18, 2009 09 -521 This responds to your letters dated January 21, 2009, and January 30, 2009, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether a Member of the Board of Directors of the Citizens Library Association of Washington, Pennsylvania, 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: As the legal representative of the Citizens Library Association of Washington, Pennsylvania (hereinafter referred to as the Citizens Library "), you have been authorized by various Members of the Board of Directors ( "the Board ") of the Citizens Library, including Dennis McWreath ( "Mr. McWreath"), to request an advisory from the Pennsylvania State Ethics Commission on their behalf. You have submitted facts that may be fairly summarized as follows. You state that the Citizens Library is unusual because it was not established by municipalities and it is not part of a municipality. Rather, the Citizens Library was founded in 1870 as a non - profit corporation approved by the Court of Common Pleas of Washington County, Pennsylvania. Pursuant to the Citizens Library's Articles of Incorporation and By -laws, Members of the Board are appointed by: Washington School District, Trinity Area School District, and McGuffey School District (collectively, the School Districts "); the City of Washington, South Strabane Township, North Franklin Township, Canton Township, and Amwell Township ( "collectively, the Municipalities "); the President Judge of the Court of Common Pleas of Washington County; and the President of Washington & Jefferson College. You state that there is no requirement that representatives appointed by the School Districts or the Municipalities be elected officials. You further state that up to six current Board Members are not elected officials. Members of the Board do not receive compensation. The Citizens Library is funded by various sources. The School Districts, the Municipalities, Washington County, and the Commonwealth of Pennsylvania provide more than fifty (50 %) of the funding for the Citizens Library. The public, trust funds Baker, 09 -521 March 18, 2009 Page 2 established for the Citizens Library, and an endowment established by the Citizens Library also contribute funds to the Citizens Library. You state that the Board has the authority to expend the funds received by the Citizens Library. Mr. McWreath is the representative of the Trinity Area School District on the Citizens Library Board. Mr. McWreath also serves as a School Director for the Trinity Area School District. Based upon the above submitted facts, you ask whether the Members of the Citizens Library Board who have authorized your inquiry would be considered "public officials" subject to the Ethics Act and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests. 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 related terms "governmental body" and "political subdivision" are defined in the Ethics Act as follows: 65 Pa.C.S. § 1102. § 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. Baker, 09 -521 March 18, 2009 Page 3 The Regulations of the State Ethics Commission similarly define the term "public official" and set forth additional criteria for determining when the exclusion for members of purely advisory boards is applicable. 51 Pa. Code § 11.1. 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 Members of the Citizens Library Board who have authorized your inquiry clearly do not fall within either the first or third category above. As Members of the Citizens Library Board, such individuals were not elected by the public, nor are they appointed officials in the executive, legislative, or judicial branch of the Commonwealth or a political subdivision of the Commonwealth. The remaining category in the definition of "public official" is the category for a person who is elected or appointed by a governmental body. Although some of the Members of the Citizens Library Board are "appointed" by governmental bodies, the determinative factor is whether the Citizens Library is a governmental entity as opposed to a private entity. The mere fact that a private entity permits a governmental body or bodies to "appoint" representatives to the private entity's board of directors does not in and of itself transform such private entity into a governmental entity. See, e.q., Pauxtis, Advice 98 -537. In the instant matter, based upon the submitted facts, you are advised that the Citizens Library is a private entity and not a governmental entity. This conclusion is based upon the following: (1) the Citizens Library was not established by municipalities and is not part of a municipality; (2) the Citizens Library was founded in 1870 (prior to the enactment of the Library Code, 24 P.S. § 4101, et seq.) as a non - profit corporation approved by the Court of Common Pleas of Washington County, Pennsylvania; and (3) there is no indication in the submitted facts that the status of the Citizens Library has changed since its founding in 1870. Accordingly, you are advised that in their capacities as Members of the Board of the Citizens Library, Mr. McWreath and the other Members of the Board of the Citizens Library who have authorized your inquiry are not to be considered "public officials" subject to the Ethics Act and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts, in their capacities as Members of the Board of Directors ( "the Board ") of the Citizens Library Association of Washington, Pennsylvania ("the Citizens Library'), Dennis McWreath and the other Members of the Board of the Citizens Library who have authorized your inquiry are not to be considered "public officials" subject to the Ethics Act and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Baker, 09 -521 March 18, 2009 Page 4 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 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