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HomeMy WebLinkAbout90-502 DeRoseMr. David S. DeRose Attorney at Law Four Kensington Square Fourth Avenue New Kensington, PA 15068 -6291 Dear Mr. DeRose: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 5, 1990 90-502 Re: Zoning Hearing Board Members; Public Official; FIS This responds to your letter of December 7, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether in your capacity as solicitor with Borough of Latrobe Zoning Hearing Board, hereinafter, Board, the members of the board are to be considered a "public officials" as that term is defined in the Public Official and Employee Ethics Law, and therefore, whether they are required to file a Statement of Financial Interests. Facts: You question whether their activities and functions fall within the purview of the definition of "public official" as that phrase is defined in the State Ethics Law and the regulations of this Commission. Specifically, you note that you and the five members of the board have engaged in some discussions regarding the State Ethics Law and the question has arisen as to whether they have to file the Financial Interest Statements. The Board members are appointed by the borough council and do not possess any authority to expend public funds. In addition the board members are not paid for their services and do not have a budget independent of the borough's budget which includes allocations for the Board. You conclude by requesting an advisory opinion as to whether the members of the Board must file the Statement of Financial Interests. Discussion: Since you question whether the board members are public officials required to file the Statement of Financial Interests under the Ethics- Law, it is necessary to analyze the duties, functions and responsibilities of board members in order to determine whether they are covered under the definition of public Kr. David S. DeRose Page 2 official and the Regulations of the Commission. Philips v. State Ethics Commission}, 79 Pa. Commw. Ct. 491, 470 A. 2d 659 (1984). The powers or duties of zoning board members are set forth in Pennsylvania Municipalities Planning Code. See Section 910.2 and 912.1, 53 P.S. 10910.2, 10912.1. The question to be answered is whether the board members duties are encompassed within the term "public official" as defined in the Ethics Law and Regulations of the Commission. "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 the State 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. The regulations of the State Ethics Commission similarly define the term "public official" as above and also set forth that the term includes any individual: Section 1.1 Definitions Public officials - -- An elected or appointed official in the executive, legislative or judicial branch of the government of the Commonwealth or its political subdivisions. The terms does not include a member of an advisory board who has no authority to spend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or a political subdivision thereof. (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 monies, 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 Mr. David S. DeRose Page 3 without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimus effect on the interest of a person. (8) The body will be deemed to have the authority to otherwise exercise the power of the State 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. 51 Pa. Code 51.1. We must review the question you present under these provisions of the statute and the regulations of the Commission in light of your duties and responsibilities as described above. Our inquiry necessarily focuses on the job itself and not on the individual incumbent in the position, the variable functions of the position, Mr. David S. DeRose Page 4 or the manner in which a particular individual occupying a position may carry out those functions. See Philips v. State Ethics Commission, 79 Pa. Cmwlth. 491, 470 A. 2d 659 (1984); Mpnunau v. Ranck. 531 Fed. Supp. 402 (E.D. Pa. 1982). Also, in reviewing your question, the Commonwealth Court in its ruling_in Phillips, supra, at page 661, directs us to construe coverage of the Ethics Act broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Act should be narrowly construed. Based upon this directive and reviewing the definition of "public official" in the statute and the regulations and opinions of this Commission, in light of their duties and responsibilities, we must conclude that they are a "public officials" subject to the financial reporting and disclosure requirements of the State Ethics Act. The zoning board members have the power to grant variances and exceptions among their duties and responsibilities. These activities fall within the definition of public official as contained in the regulations of the Commission. 51 Pa. Code 1.1. Under these circumstances and given their duties and responsibilities as outlined above, we must conclude that they are "public officials." Conclusion: The members of Latrobe Zoning Hearing Board are to be considered as "public officials" under the Ethics Law. Accordingly, they must file a Statement of Financial Interests for each year in which they hold the position outlined above and for the year following their termination of this service. If they have not already done so, a Statement of Financial Interests must be filed within 15 days of this Advice. This Statement of Financial Interests would report information of the prior calendar year. Please file the original of such a Statement with this Commission to insure compliance with this Advice, file the yellow copy with their agency or governmental body or governing authority and retain the green copy for their records. Pursuant to Section 7(9)(ii), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission Mr. David S. DeRose Page 5 review this Advice. A will be scheduled and a issued. Any such appeal the Commission within 15 51 Pa. Code S2.12. personal appearance before the Commission formal Opinion from the Commission will be must be in writing and must be received at days of the date of this Advice pursuant to S cerely, leriANN . 0 Vincent J. Dopko, Chief Counsel