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HomeMy WebLinkAbout17-535 WunzSTATE ETHICS COMMISSION 309 FINANCE BUILDING PO? BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 -932 -0936 ADVICE OF COUNSEL June 9, 2017 To the Requesters: Emil Charles Wunz, Member Robert Cavett, Member and Chairperson Water Resources Advisory Committee Pennsylvania Department of Environmental Protection 17 -535 Dear Gentlemen: This responds to your letters received April 14, 2017, by which each of you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether a Member of the Water Resources Advisory Committee of the 7e—nnsylvania Department of Environmental Protection 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: The question that is presented is whether each of you, in your capacity as a ember of the Water Resources Advisory Committee of the Pennsylvania Department of Environmental Protection ( "Water Resources Advisory Committee "), would be considered a "public official" subject to the Ethics Act and the Regulations of the State Ethics Commission and therefore would be required to file Statements of Financial Interests. A copy of the "By -Laws of the Water Resources Advisory Committee" ( "Water Resources Advisory Committee By- Laws ") has been submitted. The Water Resources Advisory Committee By -Laws provide, in pertinent part, as follows: Article II: Purpose The purpose of the Committee is to provide technical advice to the Department of Environmental Protection on the environmental, economic, and other social impacts of existing, new or proposed regulations, policies, and control techniques or technologies affecting water resources management including but not limited to surface /ground water quality and quantity issues. The Committee may request to review a Department policy, guidance or regulation needed to implement programs of the Office of Water Management and may also suggest initiatives in water resources management to the Department. The Committee FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa . us 0 e -mail: ethics (@state.pa.us Wunz/Cavett, 17 -535 June 9,, 2017 Page 2 is to consider multi -media inputs in setting its agenda and in advising the Department. The Committee shall encourage public input on the water resources technical matters under consideration at the Committee meetings. Article III: Members A. The Committee members shall be appointed by the Secretary of the Department of Environmental Protection and shall not receive any compensation for their services, but shall be reimbursed for reasonable and necessary travel and other expenses incurred upon submission of Department - approved documentation. Committee members shall serve for two (2) year terms and may be re- appointed at the discretion of the Secretary. Article V: Ad Hoc Work Groups A. The Chair [of the Committee] may appoint with the concurrence of the Department, ad hoc work groups, as deemed necessary and appropriate, with each ad hoc work group assigned specific tasks when it is formed. The ad hoc work group shall be chaired by a member of the Committee. Non - committee members may be invited to participate in such ad hoc work groups. All members of the Committee are invited to attend all ad hoc work group meetings .... It shall be the responsibility of the chair of the ad hoc work group, in consultation with the Department and the Chair [of the Committee], to maintain lists of members, call meetings, establish an agenda, and prepare minutes of the ad hoc work group and submit the same to the members of the Committee and the Department for each meeting of the ad hoc work group. The chair of the ad hoc work group, in consultation with the Department, shall issue reports to the Committee on the progress and findings of the ad hoc work group. The ad hoc work group shall not have decision - making authority independent of the Committee, but rather shall advise and report to the Committee. The Committee may take action on the advice and recommendations of an ad hoc work group, as it deems appropriate. Article Vill: Commenting to the Department Official comments of the Committee to the Department on regulations, policies, guidelines, or other issues must be approved by a majority of the Committee members present at the meeting. Water Resources Advisory Committee By -maws, at 1 -3. Wunz/Cavett, 17 -535 une 9, 2-0-17 Page 3 Additionally, in his advisory request letter, Chairperson Cavett states that the Water Resources Advisory Committee is purely advisory and has no authority o exercise the power of the state or to expend funds, other than reimbursement for personal expenses incurred in attending meetings. Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107('11) of e Ethics Act, 65 Pa.C.S. y§§ 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 appointed official in the executive, legislative or �ydicial branch of this Commonwealth or any political subivision 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: (1) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (11) The body exercises a basic power of government and performs essential governmental functions. Wunz/Cavett, 17 -535 une 9, 2 Page 4 (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. (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" who: (1) is elected by the public; (2) is elected or appointed by a governmental body; or (3) is 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 Water Resources Advisory Committee are appointed by the Secretary of Environmental Protection satisfies the first portion of the definition. Wunz/Cavett, 17 -535 uneT 9; 20'17 Page 5 In considering the remainder of the definition, based upon the submitted facts, the necessary conclusion is that each of you would 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. Therefore, you are advised that in your capacity as Members of the Water Resources Advisory Committee, ou are not public officials" subject to the Ethics Act or the Regulations of the State Ethics Commission, and yyou are not required to file Statements of Financial Interests pursuant to the Ethics Act. Conclusion: In your capacity as Members of the Water Resources Advisory Committee of the Pennsylvania Department of Environmental Protection, you 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 s—ec., and therefore you are not required to file Statements of Financial Interests pursuant to the Ethics Act. 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 writingg and must be act�uall d receive at the Commission within thirty (30) days of the date of this Advice 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 We such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, r obin M. Hittie Chief Counsel