HomeMy WebLinkAbout10-578 Confidential
ADVICE OF COUNSEL
May 10, 2010
10-578
This responds to your faxed letter dated April 9, 2010, by which you requested a
confidential advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether three As of a [type of municipality] B would be considered “public
officials” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq.; and whether the Ethics Act would impose any prohibitions or
restrictions upon the aforesaid three B As with regard to participating in discussions and
votes onCs or other official matter(s) concerning construction of Ds to the E of an F with
which each of the three B As is employed in a private capacity.
Facts:
You are Solicitor for [name of municipality], hereinafter referred to as “the
Municipality.” You have been authorized by [name of individual] (“Individual 1”), [name
of individual] (“Individual 2”), and [name of individual] (“Individual 3”), As of the [name of
governmental body] (hereinafter referred to as “the Governmental Body”), to request a
confidential advisory from the Pennsylvania State Ethics Commission on their behalf.
You have submitted facts, the material portion of which may be fairly summarized as
follows.
The Governmental Body consists of [number] As. You state that the
Governmental Body serves as an advisory body to the G of the Municipality and that the
Governmental Body has no authority to expend public funds other than reimbursement
for personal expenses. You have submitted a copy of Section [cite] of the [title of code]
(“the Code”), which sets forth the powers and duties of the Governmental Body as
follows:
[quote].
The Code, § [cite].
You state that at the present time, a business named [name of business] (“the
Business”) is considering the construction of Ds to its E. You state that the proposed
construction would take place in the Municipality and that a C for such construction may
be presented before the Governmental Body.
Confidential Advice, 10-578
May 10, 2010
Page 2
You state that Individual 1 is employed in the H of the Business. Individual 2 is
employed in the I of a J of the Business named [name]. Individual 3 is employed in the
K of the Business.
Based upon the above submitted facts, you ask whether Individual 1, Individual
2, or Individual 3 would have a conflict of interest with regard to participating in
discussions and votes on Cs or other official matter(s) concerning the Business.
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.
In the instant matter, the initial question to be addressed is whether, as As of the
Governmental Body, Individual 1, Individual 2, and Individual 3 would be considered
“public officials” subject to the Ethics Act.
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 term “governmental body” is defined 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.
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
Confidential Advice, 10-578
May 10, 2010
Page 3
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.
(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.
Confidential Advice, 10-578
May 10, 2010
Page 4
(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 the term “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 exclusion for members of purely advisory boards is applicable. Eiben,
Opinion 04-002.
In applying the definition of "public official" in the instant matter, the necessary
conclusion is that Individual 1, Individual 2, and Individual 3 would fall within the
statutory exclusion 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. This conclusion is based upon a review
of Section [cite] of the Code, which clearly indicates that the powers and duties of the
Governmental Body as delineated therein are purely advisory.
Therefore, based upon the submitted facts, the necessary conclusion is that in
their capacities as As of the Governmental Body, Individual 1, Individual 2, and
Individual 3 are not “public officials” subject to the Ethics Act.
Section 1103(a) of the Ethics Act only applies to public officials and public
employees:
§ 1103. Restricted activities
(a) Conflict of interest.--
No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
Because, in their capacities as As of the Governmental Body, Individual 1,
Individual 2, and Individual 3 are not “public officials” subject to the Ethics Act, Section
1103(a) of the Ethics Act would not apply to restrict them in such capacities.
Under the submitted facts, the only provision of the Ethics Act that applies to
Individual 1, Individual 2, and Individual 3 is Section 1103(b), which applies to everyone.
For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that
no person shall offer or give to a public official/public employee anything of monetary
value and no public official/public employee shall solicit or accept anything of monetary
value based upon an understanding that the vote, official action, or judgment of the
public official/public employee would be influenced thereby. Reference is made to
these provisions of the law not to imply that there has been or will be any transgression
thereof but merely to provide a complete response to the question presented.
Confidential Advice, 10-578
May 10, 2010
Page 5
In response to your specific question, you are advised that the Ethics Act would
not prohibit Individual 1, Individual 2, or Individual 3 from participating in discussions
and votes on Cs or other official matter(s) before the Governmental body that would
pertain to the Business.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion:
Based upon the submitted facts, you are advised that in their
capacities as As of the [name of governmental body] (hereinafter referred to as “the
Governmental Body”), a purely advisory board, [name of individual] (“Individual 1”),
[name of individual] (“Individual 2”), and [name of individual] (“Individual 3”) are not
“public officials” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq. Consequently, in their capacities as As of the Governmental
Body, Section 1103(a) of the Ethics Act--which prohibits public officials and public
employees from engaging in conduct that constitutes a conflict of interest--would not
apply to them. Section 1103(b) of the Ethics Act applies to everyone. The Ethics Act
would not prohibit Individual 1, Individual 2, or Individual 3 from participating in
discussions and votes on Cs or other official matter(s) before the Governmental Body
that would pertain to their employer, a business named [name of business]. 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
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