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HomeMy WebLinkAbout13-539 Mitman ADVICE OF COUNSEL May 31, 2013 Philip Mitman, Executive Director Easton Area Industrial Land Development Company, Inc. th One South Third Street, 8 Floor Easton, PA 18042 13-539 Dear Mr. Mitman: This responds to your letters dated March 19, 2013, and April 15, 2013, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, in your capacity as Executive Director of Easton Area Industrial Land Development Company, Inc. (“EAILD”), you would be considered a “public employee” or a “public official” subject to the requirements for filing Statements of Financial Interests pursuant to the Public Official and Employee Ethics Act (the “Ethics Act”), 65 Pa.C.S. § 1101 et seq. Facts: You seek a determination as to whether, in your capacity as Executive Director of EAILD, you are required to file Statements of Financial Interests pursuant to the Ethics Act. You have submitted a printout of the homepage of EAILD’s website, which provides, in pertinent part, as follows: EAILD A private non-profit Pennsylvania Corporation founded in 1961, located in the City of Easton, Northampton County, Lehigh Valley. MISSION To be a pro-active business partner and resource for downtown Easton’s – and our city’s – revitalization and job creation through connections to financial institutions, economic development agencies, developers, financing considerations, etc. EAILD’S ECONOMIC DEVELOPMENT HISTORY Easton Area Industrial Land Development Company Inc. (EAILD) was created in 1961 by Easton Area visionaries, Mitman, 13-539 May 31, 2013 Page 2 industrialists, corporate and business leaders as a private, non-profit Pennsylvania Corporation…. http://www.eaild.com. You have submitted copies of various documents in support of your advisory request, including By-laws of EAILD. You state that you are the only employee of EAILD and that you are employed on a part-time basis. You further state that to your knowledge, EAILD has not received or used any public funds since 2006. 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 initial question to be addressed in responding to your inquiry is whether, in your capacity as Executive Director of EAILD, you would be considered a “public employee” or “public official” as those terms are defined by the Ethics Act. The Ethics Act defines the term “public employee” as follows: § 1102. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible 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, an individual 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, Opinion 04-002; Ver Ellen, Opinion 03-005. EAILD is not part of the Commonwealth. As for whether EAILD is a “political subdivision,” the term “political subdivision” is defined by the Ethics Act as follows: Mitman, 13-539 May 31, 2013 Page 3 § 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. See also, 51 Pa. Code § 11.1 (definition of “political subdivision”). In applying the above definition to the submitted facts, you are advised that there is no basis in the submitted facts to conclude that EAILD is a “political subdivision” as that term is defined by the Ethics Act. Based upon the above, you are advised that in your capacity as Executive Director of EAILD, you are not to be considered a “public employee” as that term is defined by the Ethics Act. The Ethics Act defines the terms “public official” and “governmental body” 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. "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. 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. As Executive Director of EAILD, you clearly do not fall within either the first or third category above. As for the second category, there is no basis in the submitted facts to conclude that EAILD is a “governmental body” as that term is defined by the Ethics Act. Mitman, 13-539 May 31, 2013 Page 4 Based upon the above, you are advised that in your capacity as Executive Director of EAILD, you are not to be considered a “public official” as that term is defined by the Ethics Act. Having determined that in your capacity as Executive Director of EAILD, you are not to be considered a “public employee” or a “public official” as those terms are defined by the Ethics Act, you are further advised that you are not required to file Statements of Financial Interests pursuant to the Ethics Act. 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 be any transgression thereof but merely to provide a complete response to the question presented. Conclusion: Based upon the submitted facts, in your capacity as Executive Director of Easton Area Industrial Land Development Company, Inc., you are not to be considered a “public employee” or a “public official” as those terms are defined by the Public Official and Employee Ethics Act ("Ethics Act”), 65 Pa.C.S. § 1101 et seq. Accordingly, in that capacity, you are not required to file Statements of Financial Interests pursuant to the Ethics Act. Section 1103(b) of the Ethics Act applies to everyone. 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