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HomeMy WebLinkAbout19-508 UhlandPHONE: 717- 783 -1610 TOLL FREE: 1- 800- 932 -0936 To the Requester: ADVICE OF COUNSEL February 28, 2019 Christopher B. Uhland, Chairman Agricultural Advisory Board Pennsylvania Department of Environmental Protection Dear Mr. Uhland: FACSIMILE: 717- 787 -0806 WEBSITE: www.othics.pa.gov 19 -508 This responds to your letter by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether, as a Member and Chairman of the Agricultural Advisory Board, you currently would be considered a "public official" subject to the Public Official and Employee Ethics Act the "Ethics Act "), 65 Pa.C.S. § 110 I et sew., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 ei sew., and particularly, the requirements for filing Statements of Financial Interests. Facts: You seek a determination as to whether, in your capacity as a Member anChairman of the Agricultural Advisory Board, you would be considered a "public official' subject to the Ethics Act and the Regulations of the State Ethics Commission and therefore would be required to file Statements of Financial Interests. Administrative notice is taken of the following information: • The Agricultural Advisory Board is established within the Pennsylvania Department of Environmental Protection. See, 27 Pa.C.S. § 702. The Agricultural Advisory Board is comprised of: (1) representatives from various designated organizations; (2) gubernatorial appointees representing various agricultural activities and industries; (3) representatives of the Pennsylvania Department of Agriculture and the Pennsylvania Department of Environmental Protection; and (4) he Chairman and the Minority Chairman of the Agriculture and Rural Affair Committee of each chamber of the General Assembly, or their designees. See, 27 Pa.C.S. § 702(b). • Act 2018 -162, approved October 24, 2018, effective December 24, 2018, amended 27 Pa.C.S. § 703, pertaining to the powers of the Agricultural Advisory Board,' It is parenthetically noted that in 2006- -prior to the aforesaid recent amendments- -the Commission approved a Consent Agreement concluding that a Member of the Agricultural Advisory Board was a Uhland, 19 -508 February 28, 2019 Page 2 • As of December 24, 2018, the Agricultural Advisory Board has the following statutory powers: § 703. Powers of board. (a) General rule. — The board shall have the following powers: E ) Provide advice and expertise to the [Pennsylvania epartment of Environmental Protection] regarding the nature of agriculture in this Commonwealth. (2) Consult with the [Pennsylvania Department of nvironmental Protection] on new departmental policy and revisions to existing departmental policy and on proposed technical guidance that will affect agriculture in this Commonwealth. (3) (Deleted by amendment). (4) Consult with the [Pennsylvania Department of EEnvironmental Protection on proposed regulations and roposed genera permits that regulate agriculture in this Commonwealth. 27 Pa.C.S. § 703(a) (as amended by Act 2018 -162, effective December 24, 2018). You have submitted a copy of the Bylaws of the Agricultural Advisory Board, which provide, in pertinent part, as follows: ARTICLE 111. PURPOSE: The board shall provide advice and expertise to the [Pennsylvania Department of Environmental Protection] Secretary regarding the nature of agriculture in the Commonwealth. The board shall also have the opportunity to review and provide comment on policies, rules, and regulations of the Pennsylvania Department of Environmental Protection, which have an impact or a potential impact on agriculture or the agricultural community. The board may provide comments on any existing departmental policy or regulation, as well as any regulatory proposal which would affect agriculture. In order to achieve this purpose, the board encourages comment and input from non - voting members and the general public. Bylaws of the Agricultural Advisory Board, at 1. You state that the Agricultural Advisory Board is purely advisory and has no authority to exercise the power of the state or to expend funds, other than reimbursement for personal expenses incurred in attending meetings. "public official' subject to the Ethics Act and specifically the requirement to file Statements of Financial Interests pursuant to the Ethics Act. See, Irvin, Order No. 292 -S. Uhland, 19 -508 e ruary 28, 2019 Page 3 Discussion; It is initial) noted that pursuant to Sections '1107(10) and 1107(11) of e Ethics Act, 65 Pa.C.S. y§§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. The term "public official" is defined in the Ethics Act as follows: §'1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or tudicial branch of this Commonwealth 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. 65 Pa.C.S. § 1102. The Regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria that are used to determine whether the advisory board exception applies: (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 expen public funds if the body may commit funds or may otherwise make payment of moneys, 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 minimis economic impact on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (1) 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. (111) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. Uhland, 19 -508 F-eFruary 28, 2019 Page 4 (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 effec ive 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. (ii) The term does not include judges and inspectors of elections, notary publics and politicall party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (1= Members of zoning hearing boards and similar quasi -judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). 51 Pa. Code § 11.1. In applying the Ethics Act's definition of the term "public official" in the instant matter, based upon the submitted and administratively noted facts, the necessary conclusion is that in your capacity as a Member and Chairman of the Agricultural Advisory Board, you would fall within the statutory exception for members of purely advisory boards lacking authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or a political subdivision. Therefore, you are advised that in your capacity as a Member and Chairman of the Agricultural Advisory Board, you are not a "public official" subject to the Ethics Act or Uhland, 19 -508 eruary 28, 2019 Page 5 the Regulations of the State Ethics Commission, and you are not required to file Statements of Financial Interests pursuant to the Ethics Act. Conclusion: In your capacity as a Member and Chairman of the Agricultural Advisory Rard, you are not a "public official" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., or the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and therefore you are not required to file Statements of Financial Interests pursuant to the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writingg and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § f3.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, obin M. Hittie Chief Counsel