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HomeMy WebLinkAbout88-638 MullaneSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 26, 1988 Maria C. Mullane, Esquire Shepherd Hills Center -Suite 101 5930 Hamilton Boulevard Allentown, PA 18106 Re: Planning Commission, Public Official, FIS Dear Ms. Mullane: 88 -638 This responds to your letter of September 6, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether a planning commissioner is a public official as that term is defined under the Ethics Act so as to be required to file a Statement of Financial Interests. Facts: In your letter you advise that you are solicitor to the Planning Commission of Salisbury Township, Lehigh County. After noting that the Salisbury Township Board of Commissioners by Resolution 8 -88 -580 provided reimbursement for the Salisbury Township Planning Commission, hereinafter Commission, for necessary and reasonable expenses incurred for attendance at workshops and regular and scheduled meetings in the amount of $20.00 per month for a planning commission member and $25.00 per month for the secretary and chairman of the Commission, you inquiry as to whether the Commission members must file the Statements of Financial Interests in light of the current reimbursement. You state that the Commission members are appointed by the township commissioners and that the Commission is strictly an advisory or recommending body with no authority to expend public funds or to otherwise exercise powers within the township. After expressing your view that the Commission members are - not "public officials" as that term is defined in the Ethics Act, you note that the township is currently in the process of revising its Subdivision and Land Development Ordinance. You state that under the proposed ordinance amendment, the Commission would become a reviewing and approving body but only as to minor Maria C. Mullane, Esquire October 26, 1988 Page 2 subdivisions defined as a subdivision of a tract of land for residential purposes into no more than four lots. Additionally, you note that under the proposed ordinance they would also have such power as to resubdivisions defined as changing a lot line where no new streets or changes to streets or public improvements are proposed. You then express your view that since the foregoing two areas wherein the Commission would have review and approval power are limited, you believe that the Commission members still would not be required to file Statements of Financial Interests under those circumstances if the ordinance is adopted. You conclude by requesting advice from the Ethics Commission as to whether the Commission members would be required to file Statements of Financial Interests under their current operation and also whether they would be required to file if the proposed subdivision and resubdivision ordinance amendments are adopted. Discussion: As to whether a member of a Planning Commission is a "public official" under the Ethics Act, the foregoing term 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 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. 5402. The Regulations of the State Ethics Commission provide the following as to "public official ": 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 Maria C. Mullane, Esquire October 26, 1988 Page 3 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 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. Maria C. Mullane, Esquire October 26, 1988 Page 4 (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 §1.1. In the instant matter, based upon the statements contained in your letter, it appears that your Commission merely functions as a body which conducts reviews and makes recommendations but does not have any of the powers and functions enumerated in Section 1.1 of the Regulations of the State Ethics Commission, supra. The fact that the Commission members would receive a per month reimbursement of $20.00 and the chairman and secretary would receive a per month reimbursement of $25.00 is not dispositive on the question of whether members of the Commission are public officials under the Ethics Act, that is, an individual's status as to being either compensated or noncompensated is not determinative as to whether that individual is a public official under the Ethics Act. See Snyder v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981). Thus, based upon the facts in your letter, it would appear that the Planning Commission members would not be "public officials" as that term is defined in the Ethics Act. However, in the event that the proposed Subdivision and Land Development Ordinance amendments are enacted, then the situation would exist that the Commission would have certain, albeit limited, powers of review and approval. In that instance, the Commission would no longer be a purely advisory body but would have certain powers. In that instance, the Commission members would then be "public officials" as that term is defined under the Ethics Act. Therefore, if the proposed ordinance is approved and the Commission has powers in the enumerated areas, the Commission members would be required to file the Statement of Financial Interests under the Ethics Act. Conclusion: Based upon the facts and circumstances outlined above, the current Planning Commissioners of Salisbury Township are not "public official" under the Ethics Act and would not be required to file Statements of Financial Interests. However, if the proposed Subdivision and Land Development Ordinance is amended which would then give the Commission certain review and Maria C. Mullane, Esquire October 26, 1988 Page 5 approval powers, the Commission members would be "public officials" under the Ethics Act and required to file Statements 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 52.12. Sincerely, Vincent J. Dopko, General Counsel