HomeMy WebLinkAbout13-535 Smith
ADVICE OF COUNSEL
May 21, 2013
Louis F. Smith, Jr., Township Manager
Board of Supervisors
East Goshen Township
Chester County
1580 Paoli Pike
West Chester, PA 19380-6199
13-535
Dear Mr. Smith:
This responds to your letter dated March 25, 2013 (received April 1, 2013), by
which you requested an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether, pursuant 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., the following East Goshen Township entities
would be considered purely advisory boards: (1) the East Goshen Township Park and
Recreation Commission; (2) the East Goshen Township Planning Commission; (3) the
East Goshen Township Historical Commission; (4) the East Goshen Conservancy
Board; (5) the Commerce Commission; and (6) the Pension Committee.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
on behalf of the East Goshen Township Board of Supervisors. The narrow question
that you have posed is whether, pursuant to the Ethics Act and the Regulations of the
State Ethics Commission, the following East Goshen Township entities would be
considered purely advisory boards: (1) the East Goshen Township Park and Recreation
Commission (“Park and Recreation Commission”); (2) the East Goshen Township
Planning Commission (“Planning Commission”); (3) the East Goshen Township
Historical Commission (“Historical Commission”); (4) the East Goshen Conservancy
Board (“Conservancy Board”); (5) the Commerce Commission; and (6) the Pension
Committee.
(1) The Park and Recreation Commission.
You have submitted a copy of Chapter 51 of the Code of the Township of East
Goshen (“East Goshen Township Code”), which provides, in pertinent part, as follows:
§ 51-5. Duties
The Park and Recreation Commission shall have the
following responsibilities:
Smith, 13-535
May 21, 2013
Page 2
A. Elect a Chairperson, Vice Chairperson, and Secretary
from the Commission’s members and establish a schedule
of public meetings.
B. Recommend rules and regulations to the Supervisors
for the governance and use of park and open space facilities
and equipment.
C. Recommend and conduct approved educational and
recreational programs and special events that are fun, safe,
economical and generally accessible….
D. Promote activities/events within the parks and open
spaces that do not damage the environment, preserve
natural resources and wildlife.
E. Recommend additional facilities and uses for
Township parks and open spaces.
F. Stay current with trends in recreation by reading
appropriate journals, magazines, etc., and/or attending
workshops.
G. Keep residents informed of Commission activities.
H. Investigate, apply for and follow up on grant
opportunities.
I. Develop and sustain positive and cooperative
relationships with other Township boards and commissions.
J. Develop and sustain mutual and beneficial
collaborative relationships with community businesses,
organizations, civic groups, school districts, colleges and
universities and other municipalities.
K. Develop an ongoing plan to recruit and retain
volunteers to help with recreation activities/events.
L. Staff Park and Recreation Commission committees as
directed by the Board of Supervisors and as adopted by
resolution.
M. Submit a suggested annual budget to the Supervisors
by September 15 of each year.
N. Recommend to the Supervisors a fee schedule for the
rental of park facilities and recreational programs.
O. Submit an annual report to the Supervisors indicating
the progress toward current goals and formulation of future
goals consistent with the Comprehensive Plan of the
Township.
P. Submit an annual report to the Supervisors that
includes an analysis of the adequacy and effectiveness of
the community recreation areas, facilities and leadership.
Smith, 13-535
May 21, 2013
Page 3
East Goshen Township Code, § 51-5.
(2) The Planning Commission.
You have submitted a copy of Chapter 63 of the East Goshen Township Code,
which provides, in pertinent part, as follows:
§ 63-4. Qualifications of members; powers and duties.
The qualifications of members of the Commission and its
duties and powers shall be as prescribed in the
Pennsylvania Municipalities Planning Code Act of July 31,
1966, 247, Article II, Sections 201 through 211, provided that
the Board of Supervisors may assign to said Commission
such other duties as it may deem appropriate which are not
inconsistent with the powers and duties provided by said
Code.
§ 63-5. Expenditure of funds.
The Commission shall not have the power to obligate the
township or expend township funds without the expressed
consent, in writing, of the Board of Supervisors.
East Goshen Township Code, §§ 63-4, 63-5.
(3) The Historical Commission.
You have submitted a copy of East Goshen Township Resolution No. 94-21,
which provides, in pertinent part, as follows:
Section 2. Duties and Responsibilities
The East Goshen Township Historical Commission
(hereinafter referred to as “Commission”) shall have the
following duties and responsibilities:
a. To conduct a survey of historic resources for the
purpose of determining those of historic and/or architectural
significance and the pertinent facts about such resources; to
act in collaboration with the Planning Commission of East
Goshen Township and other groups with respect to such
survey; to maintain and periodically revise a detailed
inventory and map or maps of such historically and/or
architecturally significant resources and the data collected
concerning the said resources, appropriately classified.
b. To research and record the history of East Goshen
Township.
c. To research significant historic objects, sites,
structures, buildings and districts, and to recommend to the
Board of Supervisors the nomination of same to the National
Historic Register of Historic Places.
d. To propose from time to time to the Board of
Supervisors the establishment of historic districts in
Smith, 13-535
May 21, 2013
Page 4
accordance with the then applicable statutes and rules and
regulations of the Commonwealth of Pennsylvania.
e. To formulate regulations for the establishment of an
appropriate system of markers for selected historic and/or
architectural resources, including proposals for the
installation and care of such historic markers and to
recommend adoption of the same to the Board of
Supervisors.
f. to prepare and publish books, maps, brochures, and
descriptive materials about the Township’s history and
historic and/or architectural resources.
g. To cooperate with and advise the Board of
Supervisors via the Planning Commission in matters
involving historically and/or architecturally significant
resources, during the review of zoning and/or subdivision
and land development proposals, and to determine the
extent to which the same have the likelihood of impacting
upon historic and/or architectural resources.
h. To cooperate with and enlist assistance from the
National Park Service, the National Trust for Historic
Preservation, the Pennsylvania Historical Museum
Commission and other local, state and national historic
societies, conservancies and other agencies, public and
private, concerned with historic and/or architectural
preservation.
i. To advise owners of historic and/or architectural
buildings and resources on problems in connection therewith
and methods of preservation thereof.
j. To keep abreast of technical literature reports and
documents relevant to historic and/or architectural
preservation in East Goshen Township.
k. To promote public interest in the work of the
Commission, by carrying on a public relations program by
other appropriate means.
l. To advise the Board of Supervisors on the acquisition,
whether by gift, purchase, grant, bequest, easement, devise,
lease, or otherwise, and/or restoration of historic and/or
architecturally significant properties and other resources,
historical records and other data and material within the
purview of the Commission.
m. To make plans for the establishment of a permanent
archive of Township records and documents, and to make
recommendations to the Board of Supervisors concerning
the same.
n. To perform such other duties and undertake such
other responsibilities as may be delegated to the
Commission from time to time by the Board of Supervisors.
…
Smith, 13-535
May 21, 2013
Page 5
Section 7. Funding
The Commission may, with the consent of the Board of
Supervisors, utilize any funds, personnel or other assistance
made available by Chester County, the Commonwealth of
Pennsylvania, or federal government or any of its or their
agencies, or from any other private or public sources.
Accounting for the receipt of such funds and for the
expenditure thereof shall be pursuant to such regulations as
the Board of Supervisors may adopt. Unless specifically
authorized by the Board of Supervisors, the Commission
shall not establish any separate bank or other account for
the deposit or accumulation of funds. The Board of
Supervisors may enter into agreements or contracts
regarding the acceptance or utilization of such funds or other
assistance as may be available. The Commission shall
submit a plan of activities and a proposed budget to the
Board of Supervisors during the regular Township budget
process. Funds for the expenses to be incurred by the
Commission shall, at the discretion of the Board of
Supervisors, be appropriated by the Board of Supervisors.
The Commission may expend monies for such
administrative, clerical, printing and legal services as may
from time to time be required to, but its expenditures shall be
limited to the amount of funds appropriated to it by the Board
of Supervisors or otherwise obtained from other sources as
set forth above and, at all times, expenditures of the
Commission shall be subject to the approval of and
regulation by the Board of Supervisors.
East Goshen Township Resolution No. 94-21, Sections 2, 7.
(4) The Conservancy Board.
You have submitted a copy of Chapter 13 of the East Goshen Township Code,
which provides, in pertinent part, as follows:
§ 13-2. Advisory duties of Board.
The Board shall advise the Board of Supervisors, the
Planning Commission, the Park and Recreation Board and
other agencies, officials and employees of East Goshen
Township on matters dealing with conservation,
management, protection and use of natural resources in the
Township of East Goshen.
§ 13.3. Powers of the Board.
The Board shall have the power:
A. To make recommendations on the use and
management of open land areas within the township to
ensure that sound conservation concepts and ecological
values are considered in decisionmaking. Particular
emphasis shall be placed on the ecological evaluation of
water and land resources (including meadowlands,
woodlands and wetlands) in township parks and recreation
areas and developing recommendations to the Park and
Smith, 13-535
May 21, 2013
Page 6
Recreation Board on ecological approaches to use and
management plans for such areas.
B. To keep an index of all open areas, publicly or
privately owned, including but not limited to flood-prone
areas, lakes and ponds, wetlands, woodlands, unique
geological features and other unique natural areas for the
purpose of establishing open space preservation priorities,
identifying appropriate land management and use plans and
identifying existing or potential conflicts between such open
areas and adjacent land uses, existing or proposed.
C. To identify methods by which priority open space
areas or other property, real or personal, can be acquired
(including by gift, purchase, grant, bequest, easement or
lease) by the township or charitable conservation
organizations and, as appropriate, provide such information
to the owners of identified properties.
D. To identify important environmental or conservation
issues requiring analysis or regulatory action and provide
review and comment to the Board of Supervisors and the
Planning Commission on any studies or regulations of such
problems which may be initiated or developed by the
township or other public or private entities.
E. To provide review and comment to the Board of
Supervisors and the Planning Commission on the natural
resources impact of subdivision and land development
plans.
…
§ 13-7. Appropriation of funds.
Funds for the expenses incurred by the Conservancy Board
shall be appropriated at the discretion of the Board of
Supervisors. The Board may expend moneys for such
administrative, clerical, printing and legal services as may
from time to time be required, but its expenditures shall be
limited to the amount of funds appropriated to it by the Board
of Supervisors.
East Goshen Township Code, §§ 13-2, 13-3, 13-7.
(5) The Commerce Commission.
You have submitted a copy of East Goshen Township Resolution No. 2013-64,
which changed the name of the “Commerce Development Commission” to the
“Commerce Commission.” It is administratively noted that East Goshen Township
Resolution No. 2012-64 provides that the aforesaid Commission “shall be tasked with
developing and recommending programs to the Board of Supervisors that support the
growth and enhancement of existing business and encourage and promote the
redevelopment and use of commercial properties in East Goshen Township.”
(6) The Pension Committee.
You have submitted a copy of a memorandum (“Memorandum”) dated March 24,
2011, from you to the Township Board of Supervisors, regarding the Township’s defined
Smith, 13-535
May 21, 2013
Page 7
benefit pension plan (“Plan”). Attached to the Memorandum is a document (hereinafter
referred to as “the Plan Document”) which provides, in pertinent part, as follows:
ARTICLE VII
ALLOCATION OF RESPONSIBILITIES – NAMED
FIDUCIARIES
…
7.4 The Committee – Plan Administrator
The board of supervisors of the Township shall appoint an
administrative Committee consisting of no fewer than three
individuals who may be, but need not be, Participants,
officers, supervisors, or Employees of the Township. If the
board of supervisors does not appoint a Committee, the
Township shall act as the Committee under the Plan. The
members of the Committee shall hold office at the pleasure
of the board of supervisors and shall service [sic] without
compensation. The Committee shall be the Plan’s
“administrator” and shall be responsible for establishing and
implementing a funding policy consistent with the objectives
of the Plan. This responsibility shall include establishing
(and revising as necessary) short-term and long-term goals
and requirements pertaining to the financial condition of the
Plan, communicating such goals and requirements to the
persons responsible for the various aspects of the Plan
operations, and monitoring periodically the implementation of
such goals and requirements. The Committee shall publish
and file or cause to be published and filed or disclosed all
reports and disclosures required by federal or state laws.
7.5 Committee to Construe Plan
(a) The Committee shall administer the Plan and shall
have all discretion, power, and authority necessary for that
purpose, including, but not by way of limitation, the full and
absolute discretion and power to interpret the Plan, to
determine the eligibility, status, and rights of all individuals
under the Plan, and in general to decide any dispute and all
questions arising in connection with the Plan. The
Committee shall direct the Trustee concerning all
distributions from the Trust Fund, including the purchase of
annuity contracts, in accordance with the provisions of the
Plan, and shall have such other powers in the administration
of the Trust Fund as may be conferred upon it by the Trust
agreement. The Committee shall maintain all Plan records
except records of the Trust Fund.
(b) The Committee may adjust the Account of any
Participant, in order to correct errors and rectify omissions, in
such manner as the Committee believes will best result in
the equitable and nondiscriminatory administration of the
Plan.
7.6 Organization of Committee.
The Committee shall adopt such rules as it deems desirable
for the conduct of its affairs and for the administration of the
Smith, 13-535
May 21, 2013
Page 8
Plan. It may appoint agents (who need not be members of
the Committee) to whom it may delegate such powers as it
deems appropriate, except that the Committee shall
determine any dispute. The Committee may make its
determinations with or without meetings. It may authorize
one or more of its members or agents to sign instructions,
notices, and determinations on its behalf….
7.9 Conclusiveness of Action
Any action taken by the Committee on matters within the
discretion of the Committee shall be conclusive, final and
binding upon all participants in the Plan and upon all persons
claiming any rights hereunder, including Alternate Payees
and beneficiaries.
…
Plan Document, at 1-3.
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 definition of the term “public official” set forth in the Ethics Act excludes
members of 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:
§ 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 (Emphasis added).
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
Smith, 13-535
May 21, 2013
Page 9
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.
(E) Members of municipal, industrial development,
housing, parking and similar authorities.
Smith, 13-535
May 21, 2013
Page 10
(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 above provisions to the narrow question posed, you are advised
as follows.
Based upon the submitted facts, you are advised that, for purposes of applying
the Ethics Act, the Planning Commission, the Historical Commission, and the
Commerce Commission are purely advisory boards.
Based upon the submitted fact that the Park and Recreation Commission has the
authority to investigate, apply for and follow up on grant opportunities, the Park and
Recreation Commission is not a purely advisory board. The aforesaid authority
exceeds a purely advisory function.
Based upon the submitted fact that the Conservancy Board has the authority to
expend moneys for administrative, clerical, printing and legal services, the Conservancy
Board is not a purely advisory board 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.
In considering the powers and duties of the Pension Committee, the necessary
conclusion is that the Pension Committee is not a purely advisory board. Pursuant to
the Plan Document set forth above, the Pension Committee has the authority to, inter
alia: (1) establish and implement a funding policy consistent with the objectives of the
Plan; (2) establish and revise short-term and long-term goals and requirements
pertaining to the financial condition of the Plan; (3) administer the Plan, interpret the
Plan, determine the eligibility, status, and rights of all individuals under the Plan, and
decide any dispute and all questions arising in connection with the Plan; (4) direct the
Trustee concerning all distributions from the Trust Fund, including the purchase of
annuity contracts, in accordance with the provisions of the Plan; (5) adjust the account
of any Plan participant to correct errors and rectify omissions; (6) adopt such rules as it
deems desirable for the administration of the Plan; and (7) appoint agents to whom it
may delegate such powers as it deems appropriate. Given the foregoing powers, it is
clear that the Pension Committee is not a purely advisory board.
This Advice is limited to addressing the narrow question posed under the Ethics
Act.
Conclusion:
Based upon the submitted facts, the following East Goshen
Township entities would be considered purely advisory boards for purposes of applying
the Public Official and Employee Ethics Act (the "Ethics Act"), 65 Pa.C.S. § 1101 et
seq.: (1) the East Goshen Township Planning Commission; (2) the East Goshen
Township Historical Commission; and (3) the Commerce Commission.
Based upon the submitted facts, the following East Goshen Township entities
would not be considered purely advisory boards for purposes of applying the Ethics Act:
(1) the East Goshen Township Park and Recreation Commission; (2) the East Goshen
Conservancy Board; and (3) the Pension Committee.
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
Smith, 13-535
May 21, 2013
Page 11
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