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HomeMy WebLinkAbout81-634 HunterJames Oliver Hunter, Esquire 3209 Cathedral of Learning Pittsburgh, PA 15260 Mailin Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 November 2, 1981 ADVICE OF COUNSEL 81 - 634 RE: University of Pittsburgh Trustees, Employees, Appli- cability of Ethics Act Dear Mr. Hunter: This responds to your letter of October 3, 1980 in which you, Assistant Counsel to the University of Pitts- burgh, requested an opinion from the Ethics Commission. Issue: You requested advice as to whether the trustees and employees of the University of Pittsburgh (herein- after the University or Pitt) are subject to the Ethics Act. Facts: In your letter you state that the trustees of the University are not compensated for their services. Em- ployees of the University are compensated. The University of Pittsburgh was a private educa- tional institution until the enactment of the University of Pittsburgh - Commonwealth Act, 24 P.S. Section 2510- 201 et seq. Pitt then became one of several state - related educational institutions, 24 P.S. Section 5009. As a state - related institution the composition of the Univer- sity's Board of Trustees is regulated by statute. 24 P.S. Section 2501 -204. Pitt's voting trustees are 36 in number. The Chan- cellor of the Univeristy, the Governor, the Superintendent State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania James Oliver Hunter, Esquire November 2, 1981 Page 2 of Public Instruction and the Mayor of Pittsburgh are trustees ex officio. Twelve trustees are designated Commonwealth Trustees and four of these are appointed by the Governor subject to Senate confirmation (24 P.S. 2510 -203); and the President pro Tempore of the Senate and the Speaker of the House of Representatives each appoint four Commonwealth Trustees. The remaining twenty - four trustees are elected under the provisions of the University's by -laws. Id. Discussion: While a federal court has expressed the belief that Pitt is an instrumentality of the state for purposes of a sex discrimination suit brought pursuant to 42 U.S.C. Section 1983, Braden v. University of Pittsburgh, 477 F.2d 1 (3rd Cir. 1973). on remand 392 F.Supp 118 (W.D. PA 1975), aff'd case remanded 552 F.2d 948 (3rd Cir. 1977), that view is not conclusive. In McQuaide 80 -043, the Ethics Commission held that definitions of the Ethics Act did not extend coverage of the Ethics Act to the trustees and employees of the Pennsylvania State Uni- versity. That opinion is controlling on this question of the interpretation of the Ethics Act. The statute applies only to individuals "employed by the Commonwealth or a political subdivision" or to an "elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision." 65 P.S. Section 402. Pitt is a state - related not a state -owned institution. Pitt is not the Commonwealth by virtue of state ownership. As a state - related university, Pitt is similar to Temple University which has been held not even to constitute "an agency" of the Commonwealth for a statutory purpose. Mooney v. Temple University, 448 Pa. 424, 292 A.2d 395 (1972). The Commission reasoned that "weight must be given to the conclusion that Penn State is not the Commonwealth or even typically described or considered an agency of the Commonwealth." McQuaide, 80 -043. Pitt is similar to Penn State if not more unrelated, legally, to the State, so that it too must be considered not part of the Commonwealth, a Commonwealth agency or of a poli- tical subdivision as set forth in the Ethics Act. James Oliver Hunter, Esquire November 2, 1981 Page 3 This conclusion is supported by another part of the Commission's McQuaide Opinion. That decision gave great weight to the fact that while Penn State received state funds, its Board of Trustees was not controlled by the state appointed officials. Pitt's Board of Trustees has 12 state - appointed members and 24 chosen under Uni- versity rules. Pitt too, is plainly not under state control. Thus, the trustees and employees of the University of Pittsburgh are not generally within the definition of "public official" and "public employee" as those terms are used in the Ethics Act. See McQuaide, 80 -043. However, those trustees appointed by the Govenor subject to Senate confirmation must comply with Section 4(c) of the Ethics Act which requires the filing of a Financial Interest Statement at least ten days prior to any vote on confirmation. Hollander, 80 -037. Conclusion: The trustees and employees of the University of Pittsburgh are generally not public officials or public employees within the meaning of the Ethics Act. However, this Advice has no effect of discharging any trustee's duty to file a Financial Interest Statement by virtue of other posts held or by application of Section 4(c) of the Ethics Act as described above. 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. 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 request that the full Commission review this Advice. A personal appearance before the Commission may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /lma ni9F Sincerely, ndra S. hristianson General Counsel