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HomeMy WebLinkAbout87-624 LewisDear Mr. Lewis: Alvin B. Lewis, Jr., Esquire 221 East Chestnut Street Lancaster, PA 17602 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 October 22, 1987 ADVICE OF COUNSEL 87 -624 Re: Public Official, Statement of Financial Interests, State Planning Board This responds to your letter of September 29, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether members of the State Planning Board are public officials so as to be required to file the Statement of Financial Interests. Facts: In your letter of September 29, 1987, you advise that you represent a member of the State Planning Board. You state that it is your understanding that the Board is purely advisory and has no authority to expend public funds. You then cite part of this Commission's Regulation in 51 Pa. Code §1.1 dealing with public officials and assert that such persons in that category are exempted from the filing requirements under the State Ethics Act. The State Planning Board is an advisory board in the Governor's Office. See 71 P.S. §158(m). The powers and duties of the State Planning Board, hereinafter Board, are set forth in the State Planning Code of 1949 as amended, 71 P.S. §1049.3. Although many of the powers, duties and functions of the Board have been transferred to the Department of Community Affairs pursuant to Reorganization Plan No. 1 of 1955, P.L. 2045, the Board has retained some of its powers and duties as are set forth in subsections 1 through 4 and 6 of Section 3 of the 1949 Act, supra. Those remaining five sections provide that the Board may conduct research and compile and analyze data relative to industrial, commercial, social and fiscal factors which may influence the welfare of the Commonwealth. Further, the Board may prepare plans or programs for the fiscal and economic development of the Commonwealth, its agencies and political subdivisions. The Board may also advise other Alvin B. Lewis, Jr., Esquire October 22, 1987 Page 2 departments and bureaus and local authorities and individuals relative to coordinating all physical and economic development plans, including plans for highway, airway and air terminals, parkways, parks, water supply development, flood control and use, recreational areas, and forest reservations, and such other related matters. The Board also has the power to prepare and update long term development programs for all major state improvement projects. Lastly, the Board may collect, analyze and publish information relative to the proper economic and physical development of the state as well as the conservation of its natural resources and make recommendations to the Governor which it deems appropriate. Discussion: Section 404(a) of the Ethics Act provides: Sectioh 4. Statement of financial interests required to be filed. (a) Each public employee employed by the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency or bureau in which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. 65 P.S. 404(a). Parenthetically, it has been decided that the financial disclosure requirements in Section 404(a) apply to public officials as well as public employees. Kremer v. State Ethics Commission, 56 Pa. Cmwlth. 160, 424 A.2d 968 (1981), affirmed, 503 Pa. 358, 469 A.2d 593 (1983). In the definitional section of the Ethics Act, Section 402, "public official" is defined as follows: Section 2. Definitions. "Public official." Any elected or 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 Alvin B. Lewis, Jr., Esquire October 22, 1987 Page 3 of the State or any political subdivision thereof. [ "Public official" shall not include any appointed official who receives no compensation other than reimbursement for actual expenses.] 65 P.S. 402. However, in Snider v. Thornburgh, 469 Pa. 159, 436 A.2d 593 (1981), the Pennsylvania Supreme Court held the definitional phrase "public official" unconstitutional insofar as it operated to exempt appointed /non- compensated officials from Ethics Act coverage. Thus, the Court's decision had the effect of removing the appointed /non - compensated exclusion from the Ethics Act. The Regulations of this Commission define "public official ", in part, as follows: 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 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. (B) The body will be deemed to have the authority to otherwise exercise the power of the State or of a political subdivision if one of the following exists: Alvin B. Lewis, Jr., Esquire October 22, 1987 Page 4 (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. In reviewing the current powers and duties of the Board relative to the criteria set forth in Section 1.1(i) (A) (B) of the State Ethics Commission, super, it would appear that none of the criteria of sub - sections (A) and (B) are met with the possible exception of (B)(II). Although it possibly can be argued that the Board does perform an essential governmental function, it does not seem that any of its remaining current powers and duties fall within any of the other enumerated categoies set forth in the regulation. Therefore, since the Board does not have the powers enumberated in the Ethics Act and Regulations, the members of that Board are not "public officials" based upon the facts and circumstances outlined above. Alvin B. Lewis, Jr., Esquire October 22, 1987 Page 5 Section 3(b) of the Ethics Act provides: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). It is noted that Section 3(b) not only applies to public officials and employees but to all persons. Reference to Section 3(b) of the Ethics Act is made in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, no person may offer or accept anything of value on the understanding or with the intention that the official judgment of a public official /employee would be influenced thereby. It is assumed that such a situation does not exist here. Reference to this Section is added not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Lastly, it must be noted that the Ethics Commission may only give advice under the Ethics Act; it may not offer advice with respect to any duties or obligations that may be imposed by any other statute, code, ordinance, regulation or codes of conducts such as the State Adverse Interest Act or the Governor's Code of Conduct. Conclusion: Under the facts and circumstances as outlined above, the members of the State Planning Board are not public officials within the Ethics Act. As such, the members of the Board would not be required to file the Statement of Financial Interests under the Ethics Act. Pursuant to Section 7 (9) (i i ), 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. Alvin B. Lewis, Jr., Esquire October 22, 1987 Page 6 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 will be scheduled and a formal Opinion from the Commission w i l l be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sincerely, Vincent J. Dopko General Counsel