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HomeMy WebLinkAbout10-563 Solganick ADVICE OF COUNSEL April 2, 2010 Howard Solganick 810 Persimmon Lane Langhorne, PA 19047 10-563 Dear Mr. Solganick: This responds to your letter dated February 5, 2010, received February 11, 2010, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, as an individual whose service on a township planning commission ended on December 31, 2009, you were 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, 51 Pa. Code § 11.1 et seq., such that you would be required to file a Statement of Financial Interests for calendar year 2009 on or before May 1, 2010. Facts: You seek a determination as to whether, as an individual whose service as a Member of the Planning Commission (“the Planning Commission”) of Middletown Township (“the Township”), Bucks County, Pennsylvania, ended on December 31, 2009, you were a “public official” subject to the Ethics Act and Regulations of the State Ethics Commission, such that you would be required to file a Statement of Financial Interests for calendar year 2009 on or before May 1, 2010. You have submitted facts, the material portion of which may be fairly summarized as follows. The Planning Commission has powers and duties as set forth in Article II of the Pennsylvania Municipalities Planning Code (see, 53 P.S. §§ 10201-10211) and the Township’s codified ordinances. You note that the Township’s web site states: “[the Planning Commission] reviews zoning, subdivision and land development applications and related issues. The Commission acts as an advisory body to the Board of Supervisors and strives to create a pleasant and safe environment in Middletown.” http://www.middletowntwpbucks.org/boards/. You have cited Sections 440-302 and 440-303(6) of the Township’s Subdivision and Land Development Ordinance as setting forth advisory duties of the Planning Commission. 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. Solganick, 10-563 April 2, 2010 Page 2 It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion/advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent that your inquiry relates to future conduct, your inquiry may, and shall, be addressed. Section 1104 of the Ethics Act sets forth requirements for the filing of Statements of Financial Interests by current and former “public officials” and “public employees,” as well as by “candidates,” and “nominees.” 65 Pa.C.S. § 1104. As a Member of the Planning Commission, you were not a public employee, candidate, or nominee. 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 moneys, 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: (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. Solganick, 10-563 April 2, 2010 Page 3 (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). 51 Pa. Code § 11.1. 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. When the first portion of the definition is met, status as a public official subject to the Ethics Act is established, unless the exception for members of purely advisory boards is applicable. Eiben, Opinion 04-002. Solganick, 10-563 April 2, 2010 Page 4 In the instant matter, the submitted facts do not indicate whether, during your service as a Member of the Planning Commission, all of the authority and duties of the Planning Commission were purely advisory, such that the exception for members of purely advisory boards would have been applicable to you as a Member of the Planning Commission. Therefore, you are advised that as a former Member of the Planning Commission, you would not be required to file a Statement of Financial Interests for calendar year 2009 on or before May 1, 2010, subject to the condition that during your service as a Member of the Planning Commission, the exception set forth in the Ethics Act’s definition of “public official,” 65 Pa.C.S. § 1102, 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, was applicable to you. Cf., Magnusson, Advice 09-544; McGlynn, Advice 08-554. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a former Member of the Planning Commission (“the Planning Commission”) of Middletown Township (“the Township”), Bucks County, Pennsylvania, whose service as a Member of the Planning Commission ended on December 31, 2009, you would not be required to file a Statement of Financial Interests for calendar year 2009 on or before May 1, 2010, subject to the condition that during your service as a Member of the Planning Commission, the exception set forth in the Public Official and Employee Ethics Act’s definition of “public official,” 65 Pa.C.S. § 1102, 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, was applicable to you. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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