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HomeMy WebLinkAbout88-604 WoddardRichard S. Woodard, Esquire City of Franklin 430 Thirteenth Street Franklin, PA 16323 Dear Mr. Woodard: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 11, 1988 88 -604 Re: Financial Interests Statement, Public Official, Franklin Fine Arts Council This responds to your letter of April 20, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the members of the board of Directors of the Franklin Fine Arts Council, hereinafter the Council, are "public officials" as that term is defined in the Ethics Act and therefore whether they are required to file a Statement of Financial Interests pursuant to the Ethics Act. Facts: You state that as the solicitor for the City of Franklin you have been requested to render an opinion as to whether the members of the Council, a non - profit corporation organized under the laws of the Commonwealth of Pennsylvania, are public officials required to file a Statement of Financial Interests with the Ethics Commission. You advise that the Council does receive funds from both the City of Franklin and from the Pennsylvania Council of Arts. After stating that the Board of Directors of the Council oversee the expenditure of these funds for various programs in drama, art, music and literature, you express your view that the Council or_its officials do not appear to fit within the definition of those individuals defined in Section 2 of the Ethics Act who would be required to file a Statement of Financial Interests. You conclude by stating that you advised the Borough members that they need not file the Statement of Financial Interests but request any advice to the contrary. Following receipt of your letter of April 20, 1988, you were requested by letter of May 4, 1988 to provide additional Raymond S. Woodard, Esquire July 11, 1988 Page 2 information as to the duties and responsibilities of the Council. Since you did not respond to the letter of May 4, 1988, a follow - up letter of June 9, 1988, was sent to you requesting the additional information within 14 days. You also failed to respond to the June 9, 1988 letter. Thus, since you have failed to supply the requested additional information, an advice will be issued based upon the limited information contained in your letter of April 20, 1988. Discussion: The question in the instant matter is whether the members of the Board of the Council are "public officials" as that term is defined in the Ethics Act so as to be required to file a Statement of Financial Interests. The State Ethics Act defines the term "public official" 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. The regulations of the State Ethics Commission similarly define the term "public official" as above and also sets forth the following criteria to determine whether an individual is a public official under the Ethics Act. 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. Raymond S. Woodard, Esquire July 11, 1988 Page 3 (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 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. Raymond S. Woodard, Esquire July 11, 1988 Page 4 (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 X1.1. The question you present under these provisions of the statute and the regulations of the Commission must be reviewed both in terms of the duties and responsibilities of the individuals who serve with an entity and also the nature of the entity itself in terms of its functions vis -a -vis the criteria set forth in the regulations of the State Ethics Commission; if the above tests are met, the individuals would be considered public officials required to file the Statement of Financial Interest. In reviewing your question, the Commonwealth Court in its ruling in Philips v. State Ethics Commission, 79 Pa. Commw. Ct. 491, 470 A.2d 659 (1984), directs the Commission to construe coverage of the Ethics Act broadly rather than narrowly and conversely directs that exclusions from the Ethics Act should be narrowly construed. Further, in Camiel v. State Ethics Commission, 56 Pa. Commw. Ct. 518, 425 A.2d 60 (1981), the Commonwealth Court determined that the commissioners of the Pennsylvania Turnpike Commission were public officials even though it was argued that the Turnpike Commission was not a political subdivision of any of the three branches of government but was rather an independent instrumentality of the Commonwealth. The court rejected that argument and determined that the Turnpike Commissioners were public officials noting that they performed "an essential governmental function" and that they were within the definition of the Ethics Act so as to be required to file the Statement of Financial Interests. In applying the above quoted statute, regulations and decisional law, the limited information in which you have supplied is insufficient to make a determination as to whether the members of the Board of the Council are public officials required to file the Statement of Financial Interests. You state that the Council is a non - profit corporation organized under the law of the Commonwealth of Pennsylvania. This in and of itself is insufficient to determine whether the Council is a private - corporate- non - governmental body which would not be considered a Raymond S. Woodard, Esquire July 11, 1988 Page 5 political subdivision or whether the Council is an entity of government that is expending state and local revenues so as to be considered a political subdivision of the Commonwealth of Pennsylvania. Conclusion: Based upon the limited facts which have been submitted, you are advised that if Franklin Arts Council, a non- profit corporation organized under the laws of the Commonwealth of Pennsylvania is encompassed within the statutory definition and regulations of the Commission as to "public official ", then you are advised that the members of the Council are required to file the Statement of Financial Interests; however, if the Franklin Fine Arts Council is an entity which does not fall within the definition of a political subdivision as that term is defined in the Ethics Act and the regulations of the Commission, you are advised then that the members of the Board of Directors of the Council would not be considered public officials required to file the Statement of Financial Interests. 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 will be scheduled and a formal Opinion from the Commission will 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. 'ncerely, Vincent J. General Counsel