HomeMy WebLinkAbout12-542 Noel
ADVICE OF COUNSEL
May 31, 2012
Nicholas Noel, III, Esquire
Noel, Kovacs & McGuire, P.C.
2505 Newburg Road
Easton, PA 18045-1963
12-542
Dear Mr. Noel:
This responds to your letters dated April 13, 2012, April 23, 2012, and May 3,
2012, by which you requested an advisory from the Pennsylvania State Ethics
Commission.
Issue:
Whether: (1) legal counsel to the Police Diversity Board of the City of
Reading; or (2) the Chair of the Police Diversity Board of the City of Reading is required
to file Statements of Financial Interests pursuant to the Public Official and Employee
Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq.
Facts:
You seek a determination as to whether, in your capacity as legal counsel
to the Police Diversity Board (“Diversity Board”) of the City of Reading (“City”), you are
subject to the requirements for filing Statements of Financial Interests pursuant to the
Ethics Act. You further seek a determination on behalf of Valentin Rodriguez, Jr. (“Mr.
Rodriguez”), as to whether Mr. Rodriguez, in his capacity as Chair of the Diversity
Board, is a public official subject to the requirements for filing Statements of Financial
Interests pursuant to the Ethics Act. You have submitted facts that may be fairly
summarized as follows.
The Diversity Board was created as a result of a Settlement Agreement that
settled a civil rights lawsuit which had been filed against the City by the Pennsylvania
Statewide Latino Coalition. The Settlement Agreement was approved pursuant to an
Order (the “Court Order”) issued by the United States District Court for the Eastern
District of Pennsylvania in October 2005. On January 3, 2006, two modifications were
made to the Settlement Agreement, which modifications are not material to your
request. The Diversity Board’s creation was confirmed by action of the City Council.
You have submitted copies of the Settlement Agreement and the “By-laws of the
City of Reading Police Diversity Board” (“Diversity Board By-laws”), both of which
documents are incorporated herein by reference.
The Settlement Agreement provides, in pertinent part, as follows:
The Police Diversity Board and Its Duties
1. The City shall create, by executive order, municipal
ordinance, or other valid means, a seven-member Police
Noel, 12-542
May 31, 2012
Page 2
Diversity Board (“PDB”) comprised of the following seven
individuals: John Kramer, Javier Ortega-Benitez, Valentin
Rodriguez, Narciso Rodriguez-Cayro, Yvonne Strohman,
Sunilda Tejada, and Christopher Wakefield. All PDB
members shall serve without monetary compensation.
Attorney Nicholas Noel of the Easton, Pennsylvania law firm
of Noel, Kovacs, McGuire & Scomillo, P.C. shall serve as the
PDB’s legal counsel and shall be compensated by the City
for such services. The parties agree that Attorney Noel has
the necessary competence, qualifications, and experience to
competently provide all anticipated legal services.
2. The PDB shall play a key role in: (i) developing and
implementing municipal policies and procedures that
increase the representation of Hispanics and other minority
groups within the Reading Police Department; (ii) assuring
fair and equitable treatment of Police applicants and
potential applicants; and (iii) fostering better relations
between the Police Department and Reading’s minority
community, especially those community members whose
primary language is not English.
3. The operational expenses of the PDB shall be funded
by the City in an amount sufficient to enable the PDB to
effectively fulfill its mission and pursuant to the City’s
obligations under paragraph 23 infra.
4. The PDB shall conduct such organizational meetings
as are necessary to formulate a mission statement
consistent with this Settlement Agreement and to establish
necessary bylaws and internal operating procedures.
5. At the time of the adoption of the bylaws, the PDB
shall identify the first alternate PDB member and the first
alternate Legal Counsel, who must be approved by the
undersigned parties, and thereafter will be in a position to fill
the first vacancy that arises on the PDB. All subsequent
replacement PDB members and Legal Counsel will be
selected in accordance with the procedures described in the
bylaws and internal operating procedures to be adopted by
the PDB.
….
7. The PDB shall have access to the funding referred to
in paragraph 3 supra, and will be empowered to establish, in
its bylaws, a method of drawing on the funding provided and
a method for requesting further funding from the City upon a
showing of good cause.
….
10. …the PDB shall finalize a Police Recruitment Plan
(“Plan”), which shall detail a strategy for increasing the
diversity of the Police Department’s ranks by substantially
expanding the City’s efforts to recruit Hispanic and other
minority Police applicants. In developing the Plan, the PDB
shall, inter alia, consult with human resources experts,
including the Police Diversity Consultant discussed at
paragraphs 15-17 infra, analyze successful recruitment
Noel, 12-542
May 31, 2012
Page 3
practices utilized in other municipalities, and consult with
Police officials and members of Reading’s minority
community. The Plan shall contain specific and measurable
tasks and goals. Prior to formal enactment, the Plan shall be
submitted to the undersigned parties, who shall have an
opportunity to review and make recommendation(s) to the
Plan for consideration by the PDB.
11. Within one year after this Settlement Agreement is
approved by the Court, the PDB shall determine the
necessity of systemic changes to the method and manner in
which the City selects Police Officers from the pool of job
applicants, and, if systemic changes are deemed necessary,
shall recommend specific changes for implementation by the
City….
12. The PDB shall have timely access to information and
data reflecting the City’s minority recruitment efforts and
applicant flow data sufficient to determine the race, gender,
and national origin of every Police Officer applicant…. The
PDB shall monitor and analyze applicant flow data on a
regular basis.
13. The PDB shall have timely access to and monitor
the Police Department’s Police Officer recruitment,
application, testing, and selection processes and assure that
such processes are free from adverse impact and that such
processes are validated in a manner that complies with 29
C.F.R. § 1604.01, et seq.
14. Whenever a Hispanic or other minority job applicant is
disqualified at any stage of the Police Department
application/selection process, except the written examination
stage, the PDB shall be so informed and shall be granted
access to information concerning the disqualification
decision in order to asses [sic] whether the decision was
non-discriminatory and whether the disqualified applicant
was treated in the same manner as similarly situated White
applicants. If, after reviewing the information, the PDB has
concerns that the disqualified applicant’s minority status may
have been a factor in the disqualification decision, the PDB
shall report its concerns to the City Civil Service
Commission….
The Police Diversity Consultant
15. The City shall retain a qualified person to serve in the
position of Police Diversity Consultant (“Consultant”). The
undersigned parties agree that Charles M. Tiffin, Ph.D.
initially will serve as the Consultant and that, prior to
selecting any subsequent Consultant, the PDB shall consult
with the undersigned parties, who shall have an opportunity
to review and make recommendation(s) concerning the
prospective Consultant for consideration by the PDB….
16. The Consultant shall be paid by the City.
….
Noel, 12-542
May 31, 2012
Page 4
The Police Diversity Officer
18. Within 30 days after this Settlement Agreement is
approved by the Court, the City shall create and budget for,
and pay the salary and benefits for a new municipal position
of Police Diversity Officer (“Diversity Officer”) and any
successors in that office. The costs associated with the
employment of the Diversity Officer are not included in the
budget amount set forth in paragraph 23, infra. The parties
agree that Police Sergeant Felix Mateo initially will serve as
the Diversity Officer, and the City shall provide funding for
any education or training (including, inter alia, human
resources, marketing, cultural sensitivity, and diversity
training) the PDB deems necessary and reasonable for the
Diversity Officer to effectively perform his/her duties.
19. In the event Sgt. Mateo’s service as the Diversity
Officer terminates, the PDB shall recruit applicants for the
Diversity Officer position and, after consulting with the City,
the Police Chief, the PSLC, and any other entities the PDB
deems appropriate, shall select a qualified applicant. Prior
to selecting any Diversity Officer, the PDB shall consult with
the undersigned parties, who shall have an opportunity to
review and make recommendation(s) concerning the
prospective Diversity Officers for consideration by the PDB.
20. Any Diversity Officer must be fluent in Spanish at the
time of appointment. The PDB shall develop a full job
description for the Diversity Officer position….
Settlement Agreement, at 2-4, 6-9.
The Diversity Board By-laws provide, in pertinent part, as follows:
ARTICLE I – CREATION
1. This Board is authorized and organized pursuant to
the Order of Court of Cynthia M. Rufe, J., October 10,
2005, in and for the United States District Court for
the Eastern District of Pennsylvania, matter of
Pennsylvania Statewide Latino Coalition v. City of
Reading, indexed to No. 03-5640.
2. The Board shall be formally created by the City of
Reading via ordinance as directed in the Court’s
Order of October 10, 2005, paragraph 1.
….
ARTICLE II – PURPOSE
1. The purpose of the Board shall be to make
recommendations toward the:
a. development and implementation of municipal
policies and procedures that increase the
representation of Hispanics and other minority
groups within the Reading Police Department;
Noel, 12-542
May 31, 2012
Page 5
b. assurance of fair and equitable treatment of
Police applicants and potential applicants;
c. fostering of better relations between the Police
Department and Reading’s minority
community, especially those community
members whose primary language is not
English.
ARTICLE III – MEMBERS
1. The Board shall consist of seven (7) members. The
initial members shall be as appointed pursuant to the
Settlement Agreement dated October 9, 2005 indexed
to Term no. 03-CV-5640, in and for the United States
District Court for the Eastern District of Pennsylvania,
matter of Pennsylvania Statewide Latino Coalition v.
City of Reading.
2. Term. The members shall serve indefinitely, or until
their resignation or removal as provided within these
By-Laws.
3. At least a majority of the Board shall be Hispanic.
4. The Board shall have an alternate member selected
by a majority of the Board members and who shall
attend all meetings of the Board, but shall not be
entitled to a vote.
5. Vacancies. Vacancies on the Board, whether by
resignation or removal, shall be filled by the alternate
as selected by the Board. Additional candidates for
membership to the Board shall be recommended by
the Nominating Committee, which shall consist of
three members of the Board appointed by the Chair,
at least two of whom shall be Hispanic. The
Nominating Committee shall file with the Secretary a
list of recommended candidates as soon as
practicable after a vacancy in order to fill the alternate
position, but at least two weeks before the meeting at
which the vote will be taken.
….
7. No member of the Board shall receive any
compensation or pecuniary benefits of any kind,
except reasonable expenses that may be incurred in
fulfilling his or her duties.
8. The Board’s legal counsel shall be appointed by the
Court. Counsel will advise the Board as to legal
issues and procedures, but shall not have a vote.
Counsel shall be compensated at a rate approved by
the City who will be responsible payment [sic] of
Board expenses.
Noel, 12-542
May 31, 2012
Page 6
9. The Board shall designate a “first alternate legal
counsel”, should counsel originally appointed by the
Court be unable to fulfill his or her duties.
....
ARTICLE IX – INDEMNIFICATION
1. As an agency of the City of Reading, the City shall
indemnify each of the Board officers and members
whether or not then in service as such (and his or her
executor, administrator and heirs), against all
reasonable expenses actually and necessarily
incurred by him or her in connection with the defense
of any litigation to which the individual may be a party
because he or she is or was an officer or member of
the Board….
Diversity Board By-laws, at 1-3, 6.
You state that the Diversity Board sits in an advisory or recommendatory role in
trying to develop strategies and policies to promote the increase in diversity of minority
groups, and especially Hispanics, within the City Police Department. You assert that
the Diversity Board has no authority to do anything but make recommendations to the
Pennsylvania Statewide Latino Coalition and the City. You state that through the
course of several years, the Diversity Board has authored several reports and
recommendations to the Court and the parties to the Settlement Agreement. You
additionally state that all of the reports to the Court and the parties to the Settlement
Agreement are in the nature of recommendations and proposals. You assert that the
Diversity Board has no authority whatsoever to require either of the parties to perform
any specific function or to expend specific funds.
You state that the Diversity Board has a budget which is solely and exclusively
created by the City on an annual basis. You assert that the Diversity Board has no
check writing or expenditure authorization of its own and that the Diversity Board itself
does not engage in the expenditure of public funds. You further assert that the
expenditure of any funds occurs only through recommendation by the Diversity Board
that an activity be undertaken, such as for example attending a job fair, and that any
expenses relating to such activity are then submitted directly to the City for payment,
with said amount being credited toward the annual budget established for the Diversity
Board’s activities.
You state that you were appointed as legal counsel to the Diversity Board
pursuant to the Settlement Agreement and the Court Order. You state that you are not
an employee of the City or the Diversity Board. You express your view that you are not
a “solicitor” as that term is defined by the Ethics Act, and that as legal counsel, your
status is that of an independent contractor. The City pays for your service to the
Diversity Board.
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.
Noel, 12-542
May 31, 2012
Page 7
Pursuant to Section 1104 of the Ethics Act, 65 Pa.C.S. § 1104, “public officials,”
“public employees,” and full-time and part-time “solicitors” must file Statements of
Financial Interests pursuant to the Ethics Act.
The term "public official" is defined in the Ethics Act 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 that are used to determine whether
the advisory board exception applies:
(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.
(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.
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May 31, 2012
Page 8
(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 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 term “public employee” is defined in the Ethics Act as follows:
§ 1102. Definitions
"Public employee."
Any individual employed by the
Commonwealth or a political subdivision who is responsible
Noel, 12-542
May 31, 2012
Page 9
for taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis nature
on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102. In order to be a “public employee” subject to the Ethics Act, one
must be an “individual” and must stand in an employer-employee relationship with the
Commonwealth or a political subdivision of the Commonwealth. 65 Pa.C.S. § 1102; 51
Pa. Code § 11.1; Eiben, supra.
The term "solicitor" is defined in the Ethics Act as: “A person elected or
appointed to the office of solicitor for the political subdivision.” 65 Pa.C.S. § 1102.
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.
65 Pa.C.S. § 1102 (Emphasis added). See also, 51 Pa. Code § 11.1 (definition of
“political subdivision”).
In applying the above definitions to the submitted facts, you are advised that the
Diversity Board is a political subdivision as that term is defined by the Ethics Act. Cf.,
Snyder, Opinion 05-007; Eiben, supra; Gent, Opinion 95-006-R. This is because the
Diversity Board is an entity or body that was “organized” by another political subdivision,
the City, through the Settlement Agreement and official action of City Council which
created the Diversity Board and provided for its operation. (See, Eiben, supra, noting
that for some political subdivisions--in that instance, a charter school-- various forms of
“organization” may occur on multiple levels through the actions of multiple parties .) Per
the Diversity Board By-laws, the Diversity Board was formally created by the City via
ordinance ( Diversity Board By-laws, at 1) , and the Diversity Board and/or its Members
and officers are an agency of the City ( Diversity Board By-laws, at 6). Thus, Mr.
Rodriguez, in his capacity as Chair of the Diversity Board, is an appointed official in a
political subdivision.
Additionally, based upon the submitted facts that the Diversity Board has
authority to select a successor Police Diversity Consultant and/or Police Diversity
Officer, with the compensation for persons serving as such to be paid by the City, the
Diversity Board is not an advisory board within the exclusionary language set forth in
Noel, 12-542
May 31, 2012
Page 10
the definition of “public official” at Section 1102 of the Ethics Act, 65 Pa.C.S. § 1102.
The aforesaid authority exceeds a purely advisory function and is sufficient to meet the
definition and the criteria by which status as a "public official" is determined.
The Board’s authority to designate a “first alternate legal counsel” and to direct
the provision of education and training for the Police Diversity Officer at City expense
would provide additional support for the conclusion that the Diversity Board is not an
advisory board within the exclusionary language set forth in the definition of “public
official” at Section 1102 of the Ethics Act.
Based upon the above, you are advised that Mr. Rodriguez is a "public official"
subject to the Ethics Act and the Regulations of the State Ethics Commission, and he is
required to file Statements of Financial Interests pursuant to the Ethics Act.
As for your status as legal counsel to the Diversity Board, based upon the
submitted facts, you are not an employee of the City or the Diversity Board, but rather,
are an independent contractor. There is no basis in the submitted facts to conclude that
your position is an office or that you are a “solicitor” as that term is defined by the Ethics
Act. Therefore, based upon the submitted facts, you are advised that you are not a
public official, public employee, or solicitor as those terms are defined by the Ethics Act,
and you are not required to file Statements of Financial Interests pursuant to the Ethics
Act.
Conclusion:
The Police Diversity Board (“Diversity Board”) of the City of
Reading (“City”) is a “political subdivision” as that term is defined by the Public Official
and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Based upon the
submitted facts that the Diversity Board has authority to select a successor Police
Diversity Consultant and/or Police Diversity Officer, with the compensation for persons
serving as such to be paid by the City, the Diversity Board is not an advisory board
within the exclusionary language set forth in the definition of “public official” at Section
1102 of the Ethics Act, 65 Pa.C.S. § 1102. Valentin Rodriguez, Jr., in his capacity as
Chair of the Diversity Board, is a “public official” subject to the Ethics Act and the
Regulations of the State Ethics Commission, and particularly, the requirements for filing
Statements of Financial Interests.
As for your status as legal counsel to the Diversity Board: (1) based upon the
submitted facts that you are not an employee of the City or the Diversity Board, but
rather, are an independent contractor; and (2) given that there is no basis in the
submitted facts to conclude that your position is an office or that you are a “solicitor” as
that term is defined by the Ethics Act, you are advised that you are not a public official,
public employee, or solicitor as those terms are defined by the Ethics Act, and you are
not required to file Statements of Financial Interests pursuant to 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.
Noel, 12-542
May 31, 2012
Page 11
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