HomeMy WebLinkAbout12-570 Dunn
ADVICE OF COUNSEL
October 22, 2012
John B. Dunn, Esquire, Solicitor
Monroe County Commissioners
Administrative Center
One Quaker Plaza, Room 201
Stroudsburg, PA 18360-2192
12-570
Dear Mr. Dunn:
This responds to your letters of August 29, 2012, and September 7, 2012, by
which you requested an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq., would require two county commissioners to disclose on their
respective Statements of Financial Interests transportation and a meal that they
received from a developer in connection with a trip to view a large commercial
recreational and lodging facility owned by the developer which is similar to a project the
developer might develop in the county.
Facts:
As Solicitor for the County Commissioners for Monroe County (“County”),
Pennsylvania, you have been authorized by County Commissioners John R. Moyer and
Charles A. Garris (hereinafter collectively referred to as “the Two County
Commissioners”) to request an advisory from the Pennsylvania State Ethics
Commission on their behalf. You have submitted facts that may be fairly summarized
as follows.
A developer (the “Developer”) owns a large commercial recreational and lodging
facility (the “Developer’s Facility”) in Ohio. The Developer has plans to possibly develop
a similar project (the “Project”) in the County in the nature of an extensive indoor and
outdoor waterpark resort. If the Project proceeds, it might involve tax increment
financing pursuant to the Tax Increment Financing Act, 53 P.S. § 6930.1 et seq.
The Two County Commissioners were recently invited to view the Developer’s
Facility. You state that the Two County Commissioners accepted, on behalf of the
County, same-day turnaround transportation to and from Ohio at no expense to the
taxpayers. The Developer used its own airplane to transport the Two County
Commissioners and provided them with lunch, and no lodging was involved. You state
that no money or other consideration was paid to the Two County Commissioners and
that no reimbursement is anticipated to be made to them for any activities they
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October 22, 2012
Page 2
undertook in traveling to and from Ohio. You further state that no reimbursement is
expected by the Developer from the County.
You state that the Two County Commissioners have commented publicly several
times on their interest in the Project and that they had accepted the offered
transportation for the purpose of educating themselves as to the potential magnitude
and details of the Developer’s operation.
Based upon the above submitted facts, you pose the following questions:
(1) Whether the lunch received by the Two County Commissioners from the
Developer would be considered “hospitality” under the Ethics Act; and
(2) Whether the Two County Commissioners would be required to disclose on
their respective Statements of Financial Interests the transportation and
lunch received from the Developer, or whether any other statute or
regulation would require written disclosure of the same.
You express your view that the Two County Commissioners would not be
required to make disclosure under Section 1105(b)(7) of the Ethics Act, 65 Pa.C.S. §
1105(b)(7), as to their receipt of the aforesaid lunch and transportation, for the stated
reason that no payment or reimbursement is to be made to the Two County
Commissioners for any actual expenses incurred by them or the County.
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 Two County Commissioners are public officials subject to the Ethics Act,
including the requirements for filing Statements of Financial Interests.
Section 1104(a) of the Ethics Act provides:
§ 1104. Statement of financial interests required to be
filed
(a)Public official or public employee.--
Each public
official of the Commonwealth shall file a statement of
financial interests for the preceding calendar year with the
commission no later than May 1 of each year that he holds
such a position and of the year after he leaves such a
position. Each public employee and public official of the
Commonwealth shall file a statement of financial interests for
the preceding calendar year with the department, agency,
body or bureau in which he is employed or to which he is
appointed or elected no later than May 1 of each year that
he holds such a position and of the year after he leaves such
a position. Any other public employee or public official shall
file a statement of financial interests with the governing
authority of the political subdivision by which he is employed
or within which he is appointed or elected no later than May
1 of each year that he holds such a position and of the year
after he leaves such a position. Persons who are full-time or
Dunn, 12-570
October 22, 2012
Page 3
part-time solicitors for political subdivisions are required to
file under this section.
65 Pa.C.S. § 1104(a).
Section 1105 of the Ethics Act sets forth the substantive disclosure requirements
for Statements of Financial Interests. Section 1105(b) provides, in pertinent part, as
follows:
§ 1105. Statement of financial interests
(b) Required information.--
The statement shall
include the following information for the prior calendar year
with regard to the person required to file the statement:
. . .
(7) The name and address of the
source and the amount of any payment for or
reimbursement of actual expenses for
transportation and lodging or hospitality
received in connection with public office or
employment where such actual expenses for
transportation and lodging or hospitality exceed
$650 in an aggregate amount per year. This
paragraph shall not apply to expenses
reimbursed by a governmental body or to
expenses reimbursed by an organization or
association of public officials or employees of
political subdivisions which the public official or
employee serves in an official capacity.
65 Pa.C.S. § 1105(b)(7).
The Ethics Act defines the term “hospitality” as that term is defined in Section
13A03 of Pennsylvania’s lobbying disclosure law, 65 Pa.C.S. § 13A03 (see, 65 Pa.C.S. §
1102). The definition of “hospitality” is as follows:
§ 13A03. Definitions.
"Hospitality."
Includes all of the following:
(1) Meals.
(2) Beverages.
(3) Recreation and entertainment.
The term shall not include gifts, transportation or
lodging.
65 Pa.C.S. § 13A03.
Subject to certain statutory exceptions not applicable to this matter, Section
1105(b)(7) of the Ethics Act requires the filer to disclose on the Statement of Financial
Interests the name and address of the source and the amount of any payment for or
reimbursement of actual expenses for transportation and lodging or hospitality received
in connection with public office or employment where such actual expenses exceed
$650 in an aggregate amount per year.
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October 22, 2012
Page 4
In applying the above general principles to your specific questions, you are
advised as follows.
The payment by the Developer of expenses in providing the lunch and
transportation to the Two County Commissioners would be encompassed within the
statutory language of Section 1105(b)(7) of the Ethics Act as to “the payment for . . .
actual expenses . . . .” 65 Pa.C.S. § 1105(b)(7). The lunch received by the Two County
Commissioners from the Developer would constitute “hospitality” as that term is defined
above. Based upon the submitted facts, the transportation and hospitality received by
the Two County Commissioners from the Developer were “received in connection with
public office.” Accordingly, to the extent the reporting threshold of Section 1105(b)(7) of
the Ethics Act would be met, the Two County Commissioners would be required to
satisfy the disclosure requirements of Section 1105(b)(7) of the Ethics Act as to the
transportation and hospitality received from the Developer.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act.
Conclusion:
As County Commissioners for Monroe County (“County”),
Pennsylvania, John R. Moyer and Charles A. Garris (hereinafter collectively referred to
as “the Two County Commissioners”) are public officials subject to the provisions of the
Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq.,
including the requirements for filing Statements of Financial Interests. Based upon the
submitted facts that: (1) a developer (the “Developer”) owns a large commercial
recreational and lodging facility (the “Developer’s Facility”) in Ohio; (2) the Developer
has plans to possibly develop a similar project (the “Project”) in the County in the nature
of an extensive indoor and outdoor waterpark resort; (3) if the Project proceeds, it might
involve tax increment financing pursuant to the Tax Increment Financing Act, 53 P.S. §
6930.1 et seq.; (4) the Two County Commissioners were recently invited to view the
Developer’s Facility; (5) the Two County Commissioners accepted, on behalf of the
County, same-day turnaround transportation to and from Ohio at no expense to the
taxpayers; (6) the Developer used its own airplane to transport the Two County
Commissioners and provided them with lunch, and no lodging was involved; (7) no
money or other consideration was paid to the Two County Commissioners, and no
reimbursement is anticipated to be made to them for any activities they undertook in
traveling to and from Ohio; (8) no reimbursement is expected by the Developer from the
County; and (9) the Two County Commissioners have commented publicly several
times on their interest in the Project and that they had accepted the offered
transportation for the purpose of educating themselves as to the potential magnitude
and details of the Developer’s operation, you are advised as follows.
The payment by the Developer of expenses in providing the lunch and
transportation to the Two County Commissioners would be encompassed within the
statutory language of Section 1105(b)(7) of the Ethics Act as to “the payment for . . .
actual expenses . . . .” 65 Pa.C.S. § 1105(b)(7). The lunch received by the Two County
Commissioners from the Developer would constitute “hospitality” as that term is defined
above. Based upon the submitted facts, the transportation and hospitality received by
the Two County Commissioners from the Developer were “received in connection with
public office.” Accordingly, to the extent the reporting threshold of Section 1105(b)(7) of
the Ethics Act would be met, the Two County Commissioners would be required to
satisfy the disclosure requirements of Section 1105(b)(7) of the Ethics Act as to the
transportation and hospitality received from the Developer. Lastly, the propriety of the
proposed conduct has only been addressed under the Ethics Act.
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October 22, 2012
Page 5
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