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HomeMy WebLinkAbout09-564 WilliamsStephanie Williams 644 Boundary Avenue Hanover, PA 17331 Dear Ms. Williams: ADVICE OF COUNSEL July 20, 2009 09 -564 This responds to your letters dated April 29, 2009, and June 3, 2009, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether as a Member and Vice Chair of the Board of the Capital Resource Conservation and Development Area Council, Inc., 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 and Vice Chair of the Board of the Capital Resource Conservation and Development Area Council, Inc. ( "Capital RC &D "), 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 state that the Capital RC &D is a seven - county non - profit corporation that networks people, resources, and projects to promote responsible use and conservation of the region's natural, community, and economic resources. The Board of the Capital RC &D is comprised of three Members from each of the aforesaid seven counties "the Counties "), for a total of twenty -one Members. Members are appointed to the Board by each County's Commissioners and Conservation District. You have submitted a copy of the By -laws of the Capital RC &D, which provide, in part, as follows: Article I Organization Sec. 2 The organization is an independent, non - profit, non - partisan, incorporated group having as its primary concern the acceleration of the Williams, 09 -564 July 20, 2009 Page 2 restoration, conservation, and appropriate utilization of the natural resources within the Capital Resource Conservation and Development Area. Article II Purpose and Powers Sec. 1 The purpose and objectives of the organization are: a) To develop and carry out an Area Plan in an effort to improve conservation and proper use of natural resources. b) To cooperate and assist in carrying out local and regional development plans of other organizations and agencies. c) To create a general awareness within the region of the urgency and need for orderly development and resource conservation within the Capital Area. d) Cooperate with other organizations, corporations, agencies, etc., in planning and carrying out projects approved by the Board. e) To secure the required technical, financial, educational, and additional resources needed to facilitate the development and implementation of the Area Plan. No part of the net earnings of the organization shall benefit or be distributed to its members, trustees, directors, officers, or other private persons, except that the corporation shall be authorized and empowered to pay reasonable compensation for services rendered and make payments and distributions in furtherance of Section 501(c)(3) purposes. f) No substantial part of the organization's activities shall include the promotion of political propaganda or to otherwise influence legislation. The organization shall not participate in, or intervene in (including the publishing or distribution of statements) any political campaign on behalf of, or in opposition to, any candidate for public office. Sec. 2 Powers of the organization are delegated to the Board of Directors and are restricted to its purpose as stated in Section 1 of this Article. The Board of Directors, elected officers of the Board of Directors, and the Executive Committee have the legal authority to do the business of the Capital Williams, 09 -564 July 20, 2009 Page 3 Area RC &D Council and to execute projects approved by the Board. ARTICLE IV Board of Directors Sec. 1 Number. The total number of Board members shall not exceed three (3) per county represented. Sec. 2 Membership. The RC &D Council Board may include a County Commissioner (or their delegated representative) and a Conservation District Director (or their delegated representative) from each of the seven (7) counties represented by the RC &D Council. One member -at -large shall be appointed by the Conservation District to the Board of Directors from each of the seven (7) counties represented, with County Commissioner's [sic] approval. Sec. 7 Alternates. Each County may appoint one alternate for each representative member to the Board of Directors.... By -laws of the Capital RC &D, at 1 -5. The Board is empowered to conduct and direct the activities of the Capital RC &D, including but not limited to assisting in the development of an Area Plan as required by the Natural Resources Conservation Service, identifying and evaluating sponsors for operating funds and grant project activities, and overseeing the management of all corporation monies. Id., at 7 -8. The By -laws further provide: The conservation districts and county commissioners located within the RC &D Area are sponsors of the organization." Id. at 8. Each County is requested to contribute to the operating fund of the Capital RC &D on an annual basis. Id. at 10. You have submitted a copy of the Articles of Incorporation of the Capital RC &D, which document is incorporated herein by reference. You state that to the best of your knowledge, there are no county or municipal ordinances pertaining to the Capital RC &D. However, per the Articles of Incorporation, the Adams County Solicitor, in his official capacity, was the incorporator of the Capital RC &D. Additionally, the Adams County Solicitor is the registered agent of the Capital RC &D, and the Solicitor's Office is the registered office of the corporation. It is administratively noted that the website of the United States Department of Agriculture, Natural Resources Conservation Service, describes the Resource Conservation and Development Program ( "RC &D Program ") as follows: The Resource Conservation and Development (RC &D) Program was developed under the Soil Conservation and Domestic Allotment Act, (16 U.S.C. 590a- 590F), the Bankhead -Jones Farm Tenant Act, (16 U.S.C. 1010 and 1011), and the Food and Agriculture Act of 1962, and is Williams, 09 -564 July 20, 2009 Page 4 authorized under subtitle H, title XV of the Agriculture and Food Act of 1981, (16 U.S.C. 3451 - 3461), as amended. The Food Security and Rural Investment Act of 2002 permanently authorized the program. The Natural Resources Conservation Service administers the program. The purpose of RC &D is to improve the capability of local leaders to plan and execute projects for resource conservation and community development in their geographically designated RC &D areas. Congress created this partnership between the federal government and local communities as a way of engaging local leaders in investing limited federal dollars in community projects, which are carried out in the areas of land conservation, community development, land management, and water management. The program's goal is to promote conservation, improve land use, develop natural resources, and enhance social, economic, and environmental conditions in primarily rural areas of the United States. Through the RC &D program, local governments, Indian tribes, non - profit organizations, and councils come together to carry out community- oriented projects in accordance with the priorities of area residents. Local leadership and decision - making is provided by a council that is established as a non - profit corporation with Internal Revenue Service IRS 501(c) tax exempt status. RC &D councils provide leadership in enhancing the environment and standard of living in their geographically designated areas. Councils are composed of local government officials, farmers, ranchers, civic leaders, business leaders and others who are interested in contributing to the overall well -being of the region. The local RC &D council sets policy, direction, and priorities for the operation of their non - profit within RC &D legislative authority and national guidelines. The council is required by law to prepare and implement an area plan. The development of an area plan encourages the RC &D volunteers to seek input from various interests and to identify what services are strong or weak in the geographic area they have chosen to serve. Councils can obtain technical and financial assistance from a broad range of sources including the Federal, State, and local levels of government, other public organizations, private sources, and individual contributions. NRCS State Conservationists are assigned Federal responsibility to follow national program guidelines for the RC &D program in each State. The State Conservationist ensures cooperation among the USDA services sought by the RC &D councils to implement local projects. NRCS employs coordinators to provide technical day -to -day coordination of resources sought by RC &D councils. RC &D coordinators assist local program participants in developing and implementing RC &D area plans that direct local action to improve environmental, social, and economic conditions within the designated RC &D area. Coordinators must Williams, 09 -564 July 20, 2009 Page 5 65 Pa.C.S. § 1102. understand programs that fit local needs and build working relationships with USDA, and other Federal, State, and local agencies. Coordinators match those resources with local RC &D council volunteers to implement the RC &D area plan. http: / /www. nrcs. usda.gov/Programs/rcd/background. htm I. The function of designating new RC &D areas is reserved to the United States Secretary of Agriculture. See, 7 CFR § 601.2. Once designated, an RC &D area may receive RC &D Program assistance from the Natural Resources Conservation Service. Id. It is administratively noted that the Capital RC &D website provides that the Capital RC &D was officially "designated" by the Secretary of Agriculture in March 2002. See, http:// www. capitalrcd .org /noframes /whatis.htm. 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 additional criteria for determining when the exclusion for members of purely advisory boards is applicable. 51 Pa. Code § 11.1. The term "political subdivision" is defined in the Ethics Act as follows: § 1102. Definitions "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. Williams, 09 -564 July 20, 2009 Page 6 In applying the above provisions of the Ethics Act to the instant matter, per the Articles of Incorporation, the Adams County Solicitor, in his official capacity, was the incorporator of the Capital RC &D. Additionally, the Adams County Solicitor is the registered agent of the Capital RC &D, and the Solicitor's Office is the registered office of the corporation. The necessary conclusion is that the Capital RC &D is a political subdivision, having been "organized" through action of the Adams County Solicitor acting in his official capacity on behalf of Adams County. Cf., Eiben, Opinion 04 -002. (It is likely that other governmental bodies /political subdivisions were also involved in organizing the Capital RC &D, although the limited submitted facts do not reveal such actions.) 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. When the first portion of the definition is met, one's status as a public official subject to the Ethics Act is established, unless the exclusion for members of purely advisory boards is applicable. 65 Pa.C.S. § 1102. Per the submitted facts, Members of the Board of the Capital RC &D are appointed by each County's Commissioners and Conservation District, and the Board's authority is not purely advisory. The Board is empowered to conduct and direct the activities of the Capital RC &D, which include: developing and carrying out an Area Plan in an effort to improve conservation and proper use of natural resources; cooperating and assisting in carrying out local and regional development plans of other organizations and agencies; cooperating with other organizations, corporations, agencies, and the like in planning and carrying out projects approved by the Board; and securing the required technical, financial, educational, and additional resources needed to facilitate the development and implementation of the Area Plan. By -laws of the Capital RC &D, at 2 -3. Additionally, the Board identifies and evaluates sponsors for operating funds and grant project activities, and oversees the management of all corporation monies. Id., at 7. Based upon the above, you are advised that in your capacity as a Member and Vice Chair of the Board of the Capital RC&D, you are a "public official" as that term is defined by the Ethics Act, and you are required to file 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: In your capacity as a Member and Vice Chair of the Board of the Capital Resource Conservation and Development Area Council, Inc. ( "Capital RC &D "), you are 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. Accordingly, you must file a Statement of Financial Interests each year in which you hold the aforesaid position and the year following your 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. Williams, 09 -564 July 20, 2009 Page 7 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