HomeMy WebLinkAbout15-002 Deltuva
OPINION OF THE COMMISSION
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan
Roger Nick
Kathryn Streeter Lewis
Maria Feeley
Melanie DePalma
Brian Westmoreland
DATE DECIDED: 1/28/15
DATE MAILED: 2/17/15
15-002
Matthew J. Deschler, Esquire
Assistant Solicitor
City of Bethlehem
Office of the City Solicitor
10 East Church Street
Bethlehem, PA 18018-6025
Dear Mr. Deschler:
This Opinion is issued in response to the appeal of Advice of Counsel 14-544,
which was issued on October 1, 2014, and in response to your letter dated November 7,
2014, by which you requested an advisory from this Commission.
I.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 (“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.
II.FACTUAL BASIS FOR DETERMINATION:
By letter dated October 31, 2014, you appealed Advice of Counsel 14-544, which
was issued on October 1, 2014.
Your initial advisory request presented facts that were summarized in the Advice of
Counsel as follows:
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.
Deschler, 15-002
February 17, 2015
Page 2
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 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:
Deschler, 15-002
February 17, 2015
Page 3
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.
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
Deschler, 15-002
February 17, 2015
Page 4
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 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
Deschler, 15-002
February 17, 2015
Page 5
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 it
may, at its election, conduct such
Deschler, 15-002
February 17, 2015
Page 6
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.
Deschler, Advice of Counsel 14-544, at 1-5.
In responding to the advisory request, the Advice of Counsel determined that the
fact that Members of the City HRC are appointed by the City Mayor and City Council
Deschler, 15-002
February 17, 2015
Page 7
satisfies the first portion of the Ethics Act’s definition of “public official.”
Advice of Counsel 14-544 also determined that the Members of the City HRC on
whose behalf you had 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. The Advice of Counsel stated that 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 Advice of Counsel noted that 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 Advice of
Counsel further noted that 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 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. The Advice of Counsel determined that the City HRC is thus not
purely advisory in that it has legal authority to exercise a basic power of government and it
performs essential government functions.
Advice of Counsel 14-544 concluded that the Members of the City HRC on whose
behalf you had inquired are “public officials" subject to the Ethics Act and the Regulations
of the State Ethics Commission, and in particular, the requirements for filing Statements of
Financial Interests.
By letter dated October 31, 2014, you appealed Advice of Counsel 14-544. In your
appeal letter, you contend that the City HRC is a purely advisory board. You state that
pursuant to the express language of Section 145.06(E) of the City’s Codified Ordinances,
the City HRC may not elect to adopt the expanded procedures set forth in Section
145.06(F) of the City’s Codified Ordinances unless and until the Bethlehem City Council
(“City Council”) approves the election and appropriates funding for such procedures. You
assert that because the City HRC and City Council have not elected to adopt the expanded
procedures of Section 145.06(F) of the City’s Codified Ordinances, the City HRC does not
have legal authority to exercise a basic power of government or to perform essential
government functions. Citing Section 145.06(D) of the City’s Codified Ordinances, you
assert that the maximum “relief” the City HRC can award a complainant is the issuance of
findings of fact and a conclusion that discrimination has occurred. You argue that in the
absence of the adoption of the aforesaid expanded procedures, the City HRC is 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,
and that as such, the Members of City HRC on whose behalf you have inquired are not
public officials subject to the Ethics Act.
By letter dated November 7, 2014, you requested an advisory from this Commission
on behalf of Graig M. Schultz (“Mr. Schultz”), who is a Member of the City HRC. Noting
your appeal of Advice of Counsel 14-544, you ask whether Mr. Schultz, in his capacity as a
Member of the City HRC, would be considered a public official and therefore would be
required to file Statements of Financial Interests pursuant to the Ethics Act. You have not
Deschler, 15-002
February 17, 2015
Page 8
submitted any additional facts beyond those stated in Advice of Counsel 14-544.
By letter dated December 17, 2014, you were notified of the date, time and location
of the public meeting at which your appeal and request would be considered.
At the public meeting on January 28, 2015, you appeared and offered commentary
and arguments, which may be fairly summarized as follows.
You contend that the Members of the City HRC do not have any kind of authority
that would classify them as public officials subject to the Ethics Act. You state/assert:
Regarding discrimination complaints:
A person is not required to file a complaint with the City HRC before either filing
with the Pennsylvania Human Relations Commission (“State HRC”) or the U.S.
Equal Employment Opportunity Commission (“EEOC”).
A complainant who files a complaint with the City HRC can withdraw the complaint
and still file with the State HRC or the EEOC.
Currently all the City HRC can do is issue findings and conclusions as to whether
discrimination has occurred.
The City HRC’s findings and conclusions are not binding on anyone.
Currently, the most the City HRC can do is a kind of “shaming mechanism.”
The City HRC cannot provide legal relief to complainants.
Persons seeking relief under the City’s Codified Ordinances regarding a
discrimination complaint must go to the Court of Common Pleas.
A complainant may file a complaint in the Court of Common Pleas after the process
with the City HRC is exhausted; this would not be an appeal, but rather, a de novo
proceeding.
Unless and until City Council adopts the expanded procedures and appropriates
funding for the expanded procedures, the Members of the City HRC are not public
officials.
If City Council adopts the expanded procedures and appropriates funding for same,
the Members of the City HRC will be public officials.
Regarding expanded procedures:
Any authority of the City HRC to trigger adoption of the expanded procedures is
illusory.
It is City Council that must act to approve the expanded procedures.
City Council could enact the expanded procedures regardless of the current
wording of Article 145.06 E.
It would be the adoption and placing into effect of the expanded procedures that
would make the Members of the City HRC public officials.
Until there is a City HRC that is capable of making adjudications affecting the rights
of those who come before it, Members of the City HRC are not public officials.
Regarding dual filing:
Given the respective jurisdiction of the City HRC, the State HRC, and the EEOC,
the only time it would be advisable to file a complaint with the City HRC would be if
the complainant worked for an employer with only one to three employees and/or
fell within a class protected by the City’s Codified Ordinances and not covered by
the State or federal statutes.
Filing a complaint with the City HRC might constitute a dual filing with the State
HRC but that has not been definitively determined.
Deschler, 15-002
February 17, 2015
Page 9
If there is dual filing, such would occur by operation of law and not by any action of
the Members of the City HRC.
It would be the practice of the City HRC to forward to the State HRC any complaint
that would also fall within the latter’s jurisdiction so as to avoid prejudice to a
litigant’s rights.
III.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, this 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.
Our review of this matter is de novo (Clarke, Opinion 04-012; Spear, Opinion 04-
011): “De novo review entails, as the term suggests, full consideration of the case anew.
The reviewing body is in effect substituted for the prior decision maker and redecides the
case.” D’Arciprete v. D’Arciprete, 323 Pa. Super. 430, 470 A.2d 995 (1984) (citations
omitted). See also, Hayes v. Donohue Designer Kitchen, Inc., 2003 Pa. Super. 84, 818
A.2d 1287 (2003); Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983); In re
Audit of School District, 354 Pa. 232, 47 A.2d 292 (1946).
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.
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.
Deschler, 15-002
February 17, 2015
Page 10
(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.
(F) Members of zoning hearing boards and similar
quasi-judicial bodies.
Deschler, 15-002
February 17, 2015
Page 11
(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: (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 noted in Advice of Counsel 14-544, the fact that Members of the City HRC are
appointed by the City Mayor and City Council satisfies the first portion of the definition.
See, Muscalus, Opinion 02-007. The remaining question is whether the exclusion for
members of purely advisory boards is applicable.
In reviewing the pertinent provisions of Article 145 of the City Codified Ordinances,
we conclude that the Members of the City HRC on whose behalf you have inquired would
currently fall within the statutory exclusion 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. While the City HRC
currently has authority to issue findings of fact and a conclusion that discrimination has
occurred, such authority in and of itself appears to have no legal effect. We conclude that
by itself, such authority is in the nature of a recommendation.
The only non-advisory functions of the City HRC are functions that could be
performed pursuant to the expanded procedures set forth in Section 145.06(F) of the City’s
Codified Ordinances. Based upon the submitted fact that the City HRC and City Council
have not elected to adopt the aforesaid expanded procedures, we conclude that the City
HRC is currently a purely advisory board, and therefore the exclusion for members of
purely advisory boards is applicable to the Members of the City HRC on whose behalf you
have inquired. However, if the City HRC and City Council would elect to adopt the
aforesaid expanded procedures, the City HRC would no longer be a purely advisory board,
and the exclusion for members of purely advisory boards would no longer be applicable.
Based upon the above analysis, we grant the appeal and reverse Deschler, Advice
of Counsel 14-544. We hold that the Members of the City HRC on whose behalf you have
inquired currently are not “public officials” subject to the Ethics Act or the Regulations of
this Commission, and therefore they are not required to file Statements of Financial
Interests pursuant to the Ethics Act at this time.
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
IV.CONCLUSION:
Based upon the submitted facts, Victoria A. Coyle, Judith Deltuva, Chelsea S.
Hahalis, Graig M. Schultz, Loren L. Speziale, and Robert G. Vidoni, in their capacity as
Members of the Human Relations Commission of the City of Bethlehem, currently are not
“public officials” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq., or the Regulations of the State Ethics Commission, 51 Pa. Code §
11.1 et seq., and therefore they are not required to file Statements of Financial Interests
pursuant to the Ethics Act. The appeal is granted, and Deschler, Advice of Counsel 14-
544, is reversed. The propriety of the proposed conduct has only been addressed under
Deschler, 15-002
February 17, 2015
Page 12
the Ethics Act.
Pursuant to Section 1107(10), the person who acts in good faith on this Opinion
issued to him shall not be subject to criminal or civil penalties for so acting provided the
material facts are as stated in the request.
This letter is a public record and will be made available as such.
By the Commission,
Nicholas A. Colafella
Chair