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HomeMy WebLinkAbout88-649 ThomasDear Ms. Thomas: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 23, 1988 Ms. Judith E. Thomas 8012 Crefeld Street 88 -649 Philadelphia, PA 19118 Re: Philadelphia County Board of Public Assistance, Public Official, FIS This responds to your letter of September 13, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether in your capacity as a member with the Philadelphia County Board of Assistance, hereinafter, the Board, you are to be considered a "public official" as that term is defined in the Ethics Act, and therefore, whether you are required to file a Statement of Financial Interests pursuant to the Ethics Act. Facts: You question whether your activities and functions fall within the purview of the definition of "public official" as that phrase is defined in the State Ethics Act and the regulations of this Commission. In order to review the question presented, the duties and responsibilities associated with your position must be reviewed. Since the Philadelphia County Assistance Office has not responded to our request for information, reliance will be placed upon the Public Welfare Code. The duties and responsibilities of the County Boards of Assistance is set forth in Section 419 of the Public Welfare Code as follows: 5419. Administration of assistance and related functions Each County board shall: (1) Administer public assistance in the county, and determine the eligibility for assistance of applicants and continued Ms. Judith Thomas November 23, 1988 Page 2 eligibility for assistance of persons receiving the same in accordance with law and the rules, regulations and standards established by the department. (2) Take measures to promote the welfare and self - dependency of individuals and families eligible for assistance by helping them to secure rehabilitative, remedial or other constructive aid, through local community resources, through direct provision of such aid, in accordance with rules, regulations and standards adopted by the department. (3) With the approval of the secretary, supervise the administration of and promote any . public function related to assistance, or the work of the department, or of the county board, which may be committed to the county board by a political subdivision of the Commonwealth." 62 P.S 5419. You, however, assert that you did file a Statement of Financial Interests form approximately sixteen months ago because you thought you were being considered for an appointment to one of the state commissions. Since the appointment did not come to fruition, you do not believe it is necessary for you to file anything further. You also assert that; the Board is only an advisory Board; it has no voting authority; spends no money, receives no money and, hence, does not fall within the guidelines for filing of the Statement of Financial Interests. In addition you state that Don Jose Stovall, the Executive Director of your Board advised you that you did not have to file. You conclude by asserting that you have nothing to hide and that you would file such a statement where it necessary to do so. Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as a member serving with the Board to be considered a "public official." The State Ethics Act defines that term 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 Ms. Judith Thomas November 23, 1988 Page 3 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. S402. The regulations of the State Ethics Commission similarly define the term public official as above and also set forth that the term includes any individual: 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 a political subdivision if one of the following exists: Ms. Judith Thomas November 23, 1988 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. 51 Pa. Code S1.1. The question you present must be reviewed under these provisions of the statute and the regulations of the Commission in light of the duties and obligations as set forth in Section 419 inter alia of the Public Welfare Code. The inquiry necessarily focuses on the job itself and not on the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying a position may carry out those functions. See McClure, Opinion 83 -001; Phillips, Opinion 82 -008, affirmed on appeal, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Ms. Judith Thomas November 23, 1988 Page 5 Also, in reviewing your question, the Commonwealth Court in its ruling in Phillips, supra, at page 661, 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. Based upon this directive and reviewing the definition of "public official" in the statute and the regulations and opinions of this Commission, in light of the functions and the information available, the conclusion must be that while you serve in this capacity, you are a "public official" subject to the financial reporting and disclosure requirements of the State Ethics Act. Since it is clear that the Board has the power to determine eligibility under the law and regulations of the Department and take measures to promote the welfare of individuals and take certain supervisory actions subject to the approval of the secretary, the duties of the Board fall within the definition of "public official" as set forth in the Ethics Act. 65 P.S. §402. Your argument that your particular Board is only advisory and has no voting authority nor spends money or receives money is not depositive since the controlling factor is the power that the Board may exercise rather than the extent to which it exercises its powers. See Phillips v. State Ethics Commission, supra. These activities fall within the definition of public official as contained in the regulations of the Commission. 51 Pa. Code 1.1. Under these circumstances and given the duties and responsibilities of the Board as outlined above, you are a "public official" as that term is defined in the State Ethics Act. Conclusion: Based upon the above discussion, you are to be considered a "public official" in your capacity as a member with the Philadelphia County Board of Assistance. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the position outlined above and for the year following your termination of this service. If you have not already done so, a Statement of Financial Interests must be filed within 15 days of this Advice. This Statement of Financial Interests would report information of the prior calendar year. Please file the original of such a Statement with this Commission to insure compliance with this Advice, provide the yellow copy to your Board and retain the green copy for your records. Ms. Judith Thomas November 23, 1988 Page 6 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 former 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 S2.12. Sincerely, Vincent J Dopko, General Counsel