HomeMy WebLinkAbout13-514 Magaw
ADVICE OF COUNSEL
March 14, 2013
Scott C. Magaw, Esquire
408 Lenox Avenue
Forest Hills, PA 15221
13-514
Dear Mr. Magaw:
This responds to your letter dated January 29, 2013, by which you requested an
advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether as a Member of the Planning Commission of the Borough of
Forest Hills, you would be considered a "public official" subject to the Public Official and
Employee Ethics Act (the "Ethics Act"), 65 Pa.C.S. § 1101 et seq., and the Regulations
of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and particularly, the
requirements for filing Statements of Financial Interests.
Facts:
You seek a determination as to whether, in your capacity as a Member of
the Planning Commission (“Planning Commission”) of the Borough of Forest Hills
(“Borough”), 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 note that you were appointed to the Planning Commission by Borough Council, and
you express your belief that the Planning Commission is a purely advisory board.
It is administratively noted that Chapter 1, Part 6 of the Forest Hills Borough
Code of Ordinances (“Code of Ordinances”) provides, in pertinent part, as follows:
A. Planning Commission
…
§1-603. Powers to Employ and Contract.
The Commission may employ persons, whose
salaries and wages and other necessary expenses of the
Commission, are approved by Council. They may contract
for professional services, the costs and expenses of which,
when approved by Council, shall be provided for through
proper appropriation by Council.
§1-604. Jurisdiction and Powers.
The Borough Planning Commission shall have the
powers and duties as provided by the current Pennsylvania
Municipalities Planning Code, 53 P.S. §10101 et seq., as if
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March 14, 2013
Page 2
fully set forth herein, this Code, or other ordinances adopted
by the Borough.
Code of Ordinances, §§ 1-603, 1-604.
You have submitted a copy of Chapter 27, Part 13 of the Code of Ordinances
which provides, in pertinent part, as follows:
§ 27-1308. Planning Commission.
…
2. Duties and Responsibilities. The Planning
Commission shall at the request of the Borough Council
have the power and shall be required to:
A. Prepare the Comprehensive Plan for the
development of the Boroughs [sic] as set forth in the
MPC, 53 P.S. §10101 et seq., and present it for the
consideration of Borough Council.
B. Maintain accurate and correct records of all of
its actions taken by it in relation to the provisions of
this Chapter and Chapter 22 of the Forest Hills
Borough Code of Ordinances, “Subdivision and Land
Development Ordinance.” All records and files of the
Planning Commission shall be in the possession of
the Borough Council.
C. Submit by March 1 of each year a report to
Borough Council outlining any substantive or
administrative problems that have been identified in
this Chapter and Chapter 22 of the Forest Hills
Borough Code of Ordinances, “Subdivision and Land
Development,” along with recommended changes in
this Chapter to reflect changes in development
conditions, land uses, population, public services and
facilities or similar conditions in the Borough.
D. Prepare and make recommendations to
Borough Council on proposed amendments to this
Chapter, the Zoning Map and Chapter 22 of the
Forest Hills Borough Code of Ordinances,
“Subdivision and Land Development Ordinance.”
E. Review and make recommendations to
Borough Council on applications for conditional uses.
F. Review and make recommendations to the
Board on applications for variances, uses by special
exception and changes in nonconforming uses.
G. Review and make recommendations to
Borough Council on applications for subdivisions and
land development pursuant to Chapter 22 of the
Forest Hills Borough Code of Ordinances,
“Subdivision and Land Development.”
Magaw, 13-514
March 14, 2013
Page 3
H. Provide technical and consultative assistance
to other Borough Boards, commissions and officials in
exercise of their duties relating to this Chapter.
I. Where requested by the Zoning Officer, render
advice and recommendations on any application.
J. Review this Chapter, Subdivision and Land
Development Ordinance [Chapter 22], Forest Hills
Borough Zoning Map and such other ordinances and
regulations governing the use and development of
land no less frequently than it reviews the
Comprehensive Plan.
K. Do such other acts as may be necessary to
fulfill the duties and obligations imposed by the MPC,
53 P.S. §10101 et seq., and this Chapter.
L. Review and make recommendations on
whether proposed Borough actions are in accordance
with the objectives of the Comprehensive Plan as
submitted to the Planning Commission.
…
6. Expenditures. Borough Council shall budget funds for
the Planning Commission to employ or contract for
secretaries, clerks, legal counsel, consultants and other
technical or clerical personnel.
Code of Ordinances, § 27-1308.
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 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.
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March 14, 2013
Page 4
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.
(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.
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March 14, 2013
Page 5
(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. The fact that you were
appointed to the Planning Commission by Borough Council satisfies the first portion of
the definition.
As for the remainder of the definition, the necessary conclusion is that you would
fall within the statutory exception for members of advisory boards lacking authority: (1)
to expend public funds other than reimbursement for personal expense; or (2) to
otherwise exercise the power of the State or a political subdivision.
Although the Planning Commission has the power under Section 1-603 of the
Code of Ordinances to employ persons and contract for professional services, the
authority to expend public funds in relation to such employment/contracting lies with
Borough Council through its power of approval over the expenses associated with such
employment/contracting.
Additionally, in considering the duties and responsibilities of the Planning
Commission as delineated by Sections 1-604 and 27-1308 of the Code of Ordinances, it
is clear that the Planning Commission is a purely advisory board.
Therefore, the necessary conclusion is that in your capacity as a Member of the
Planning Commission, you are not a "public official" as that term is defined in the Ethics
Act. Cf., Magnusson, Advice 09-544; McGlynn, Advice 08-554. Thus, you are not
subject to the disclosure requirements of the Ethics Act, and you are not required to file
Statements of Financial Interests.
The only provision of the Ethics Act that applies to you 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 the 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
Magaw, 13-514
March 14, 2013
Page 6
be any transgression thereof but merely to provide a complete response to the question
presented.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion:
In your capacity as a Member of the Planning Commission of the
Borough of Forest Hills, you are not a “public official” as that term is defined by the
Public Official and Employee Ethics Act (“Ethics Act”). Accordingly, in that capacity,
you are not subject to the disclosure requirements of the Ethics Act, and you are not
required to file Statements of Financial Interests. Section 1103(b) of the Ethics Act
applies to everyone. 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