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HomeMy WebLinkAbout14-544 Speziale ADVICE OF COUNSEL October 1, 2014 Matthew J. Deschler, Esquire Assistant Solicitor City of Bethlehem Office of the City Solicitor 10 East Church Street Bethlehem, PA 18018-6025 14-544 Dear Mr. Deschler: This responds to your letters dated July 22, 2014, and August 7, 2014, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether a Member of the Human Relations Commission of the City of Bethlehem 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: As Assistant Solicitor for the City of Bethlehem (“City”), you have been authorized by Victoria A. Coyle (“Ms. Coyle”), Judith Deltuva (“Ms. Deltuva”), Chelsea S. Hahalis (“Ms. Hahalis”), Loren L. Speziale (“Ms. Speziale”), and Robert G. Vidoni (“Mr. Vidoni”), each of whom is a Member of the City Human Relations Commission (the “City HRC”), to request an advisory from the Pennsylvania State Ethics Commission on their behalf. The question posed is whether these Members of the City HRC who have authorized your inquiry would be considered public officials and therefore would be required to file Statements of Financial Interests pursuant to the Ethics Act. You have submitted a copy of Article 145 of the Codified Ordinances of the City of Bethlehem (“the City Codified Ordinances”), which established the City HRC and sets forth its duties and responsibilities. Article 145 of the City Codified Ordinances provides, in pertinent part, as follows: 145.05 Establishment of Human Relations Commission. A. Pursuant to 43 P.S. § 962.1 of the Pennsylvania Human Relations Act, there is hereby established a Human Relations Commission in and for Bethlehem (hereinafter referred to as the “Bethlehem Human Relations Commission” or the “Commission”). B. The Bethlehem Human Relations Commission shall consist of no fewer than nine and no more than thirteen members, who shall serve overlapping terms Deschler, 14-544 October 1, 2014 Page 2 of three years each. At all times there shall be an odd number of members. 60% of the Commission members shall be appointed by the Mayor with the approval of City Council and 40% of the Commission members shall be appointed by City Council .… Members of the Bethlehem Human Relations Commission shall serve without salary but may be paid expenses incurred in the performance of their duties, as approved by Bethlehem Council. Paid staff may be hired by the Mayor to assist in the performance of the duties of the Commission, and any compensation must be approved by City Council. …. D. City Council hereby grants to the Bethlehem Human Relations Commission all of the powers necessary to the execution of its duties (as set forth below), provided that those powers shall not exceed those exercised by the Pennsylvania Human Relations Commission under the Pennsylvania Human Relations Act. E. Duties. The Commission shall: a. Promote mutual understanding, respect and cooperation among all racial, cultural, religious, ethnic, nationality and other groups within the City b. Make studies into the status of human relations in the City c. Cooperate with and assist other organizations, public or private, to improve relationships among the citizens of the City d. Conduct an educational program for furtherance of the improvement of human relations in the City e. Act as a referral group for complaints of alleged discrimination within the City and, wherever possible, the Commission shall refer the complainants to appropriate social, civic or government agencies for further action. 145.06 Procedures; Expanded Procedures. A. Filing a complaint. 1. Any person(s) claiming to be aggrieved by an unlawful practice may make, sign and file a verified complaint alleging violations of this chapter…. B. Notification and answer. Deschler, 14-544 October 1, 2014 Page 3 1. Within 30 days of its receipt of a complaint, the Human Relations Commission shall: a. Send a copy of the complaint to the person(s) charged with a discriminatory practice \[the “respondent(s)”\] …. C. Fact Finding conference. 1. After the \[Commission has received an answer to the complaint from the respondent\], the Commission shall, within 60 days, invite the parties to voluntarily participate in a fact finding conference concerning the dispute…. 2. If the parties agree to participate in a fact finding conference, the parties shall meet with a Commission member at a location mutually agreeable to the parties within 30 days of the agreement to participate. Each party will be invited at the fact finding conference to present evidence and documents relevant to the complaint…. 3. The parties shall notify the Commission of whether the fact finding conference resulted in a resolution of the complaint. In the event the complaint is resolved, the Commission shall notify the parties that the complaint has been dismissed. In the event the complaint is not resolved through the fact finding conference, then the Commissioner, within 30 days, shall prepare findings of fact and a conclusion as to whether the Commissioner finds probable cause that an unlawful practice has occurred. D. Disposition of the complaint. Provided the Commission has not elected under Subsection E of this section to use expanded procedures, and if the complaint is not resolved through the fact finding conference, the Commission shall, at the second Commission meeting following the fact finding conference, consider the findings prepared by the Commissioner who conducted the fact finding conference. The Commission shall accept or reject the findings by public vote. The Commission shall provide the parties with the findings of fact and conclusion, shall notify the parties of the outcome of the vote, and this notice shall also indicate that the person aggrieved has a right to pursue the matter in court by filing a lawsuit. E. Option of the Commission to elect for expanded procedures. The Commission shall have the authority to elect to adopt expanded procedures as set forth in Subsection F of this section subject to approval by City Council and appropriation of funding by City Deschler, 14-544 October 1, 2014 Page 4 Council for such procedures. A majority of Commission members must vote in favor of adopting expanded procedures in order for such procedures to be adopted .… If the Commission has adopted expanded procedures, it may also, by majority vote and in its sole discretion, eliminate such procedures. F. Expanded procedures: 1. Dismissal or nondismissal of the complaint. If the fact finding conference was successful in resolving the complaint, the Commission shall follow the procedures set forth in Subsection C.3 of this section. 2. Investigation. The Commission shall, in a timely fashion, investigate the allegations of discrimination set forth in the complaint. The Commission may, in the conduct of such investigation, issue subpoenas to any person charged with an unlawful practice to furnish information, records or other documents, or to give sworn testimony, as necessary to assist in its investigation. The Commission may seek enforcement of its subpoena by Petition to the Court of Common Pleas of Northampton and/or Lehigh County as appropriate. 3. Finding of no cause. If it shall be determined after the Commission’s investigation that there is no basis for the allegations of the complaint, the Commission shall cause to be issued and served upon the parties written notice of such determination. This notice shall inform the person aggrieved that he/she has the right to pursue the matter in court by filing a lawsuit. 4. Conciliation. If the Commission, after investigation, determines that probable cause exists for the allegations of the complaint, the Commission shall immediately endeavor to eliminate the unlawful practice complained of by persuasion, conference and conciliation. 5. Public hearing. a. If the Commission, in its discretion, finds it is not possible to eliminate the unlawful practices by persuasion, conference or conciliation, the Commission shall cause to be issued and served a written notice, together with a copy of the complaint, which informs the respondent that the respondent must answer the charges of such complaint at a hearing before the Commission….. b. The Commission may designate one or more of its members to preside at such a hearing or Deschler, 14-544 October 1, 2014 Page 5 it may, at its election, conduct such hearing with a panel of either 2 or 3 Commissioners. c. At the public hearing, the case in support of the complaint shall be presented to the Commission …. Both the complainant and the respondent may appear at the hearing \[and introduce testimony and documentary evidence\]. 6. Findings. If upon all the evidence at the hearing the Commission shall find that a respondent has engaged in or is engaging in any unlawful discriminatory practice as defined in this chapter, the Commission shall state its findings of fact and shall issue and cause to be served on such respondent an order requiring such respondent to cease and desist from such unlawful discriminatory practice and to take such additional action as the Commission deems appropriate. The Commission shall have the authority to order any remedies available to the Pennsylvania Human Relations Commission under the Pennsylvania Human Relations Act. 7. Finding of No Discrimination. If upon all the evidence the Commission shall find that a respondent has not engaged in any unlawful discriminatory practice, the Commission shall state its findings of fact and shall issue and cause to be served on the parties an order dismissing the complaint as to such respondent. Sections 145.05 and 145.06 of the City Codified Ordinances. You state that the position of Member of the City HRC is an unsalaried, volunteer position and that the City budget does not allocate any funds to the operation of the City HRC. You state that the City HRC and City Council have not elected to adopt the expanded procedures set forth in Section 145.06(F) of the City Codified Ordinances. You further state that the City HRC cannot award damages or equitable relief to a complainant who prevails on a discrimination complaint filed with the City HRC and that the maximum “relief” the City HRC can afford a complainant is the issuance of findings of fact and a conclusion that discrimination has occurred. See, Section 145.06(D) of the City Codified Ordinances. 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 Deschler, 14-544 October 1, 2014 Page 6 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. (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. Deschler, 14-544 October 1, 2014 Page 7 (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” (defined to include, inter alia, a council, office, or officer); 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 Members of the City HRC are appointed by the City Mayor and City Council satisfies the first portion of the definition. As for the remainder of the definition, the status of a board as either purely advisory or not purely advisory is determined by the nature of the authority conveyed to the board by its enabling legislation, regardless of whether such authority is exercised by the board. See, Williams/Pennington/Ray, Opinion 03-002-R. The necessary conclusion is that the Members of the City HRC on whose behalf you have inquired would not fall within the statutory exception for members of purely 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. Section 145.06(E) of the City’s Codified Ordinances provides the City HRC with the authority to elect to adopt the expanded procedures set forth in Section 145.06(F) of the City’s Codified Ordinances. The expanded procedures of Section 145.06(F) provide the City HRC with the power to, inter alia: (1) conduct investigations as to alleged unlawful discriminatory practices in the City; (2) issue subpoenas to any person charged with an unlawful discriminatory practice to compel testimony and the production of documents as necessary to assist the City HRC in its investigation; (3) hold public hearings as to alleged unlawful discriminatory practices; (4) make findings as to whether a person has engaged in or is engaging in any unlawful discriminatory practice; and (5) order a person found to have engaged in or to be engaged in any Deschler, 14-544 October 1, 2014 Page 8 unlawful discriminatory practice to cease and desist from such unlawful discriminatory practice and to take such additional action as the City HRC deems appropriate, which specifically may include ordering any remedies available to the Pennsylvania Human Relations Commission under the Pennsylvania Human Relations Act. Thus, the City HRC is not purely advisory in that is has legal authority to exercise a basic power of government and it performs essential government functions. Therefore, based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission’s Regulations, and the opinions of the State Ethics Commission, the necessary conclusion is that the Members of the City HRC on whose behalf you have inquired are “public officials" subject to the Ethics Act and the regulations of the State Ethics Commission, and they are required to file Statements of Financial Interests pursuant to the Ethics Act. Conclusion: As Members of the Human Relations Commission of the City of Bethlehem, Victoria A. Coyle, Judith Deltuva, Chelsea S. Hahalis, Loren L. Speziale, and Robert G. Vidoni are “public officials” subject to the Public Official and Employee Ethics Act (“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. 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