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HomeMy WebLinkAbout19-004 ConfidentialPHONE: 717 -783 -1610 STATE ETHICS COMMISSION FACSIMILE: 797- 787 -0806 TOLL FREE: 1- 800 - 932 -0935 FINANCE BUILDING WEBSITE: www.ethiGS.12a.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 OPINION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma Monique Myatt Galloway Michael A. Schwartz Shelley Y. Simms DATE DECIDED: 311119 DATE MAILED: 3/5119 To the Requester: 19 -004 This Opinion is issued in response to your January 18, 2019, request for a confidential advisory opinion. ISSUE: Whether Members of the A appointed by B would be considered "public officials" subject to the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101 et se q,, and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seg., and particularly, the requirements for filing Statements of Financial Interests. II. FACTUAL BASIS FOR DETERMINATION: By letter dated January 18, 2019, you have requested a confidential advisory opinion on behalf of Members of A appointed by B as to whether such Members would be considered "public officials" subject to the Ethics Act, 65 Pa.C.S. § 1101 et se q., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et se ., and particularly, the requirements for filing Statements of Financial Interests. You note that A was first established in [ earl by C. C was amended in [year]. C as amended was rescinded and replaced by D, which is the current E establishing A and its powers and duties. You have submitted copies of C as initially issued and as amended. You have also submitted a copy of D, which is dated [date], and which is incorporated herein by reference. D provides, in part, as follows: Confidential O inion, 19 -004 March 5, Page 2 [specific paragraphs]. [cite]. We note that Paragraphs [specific paragraphs] above appeared for the first time in D; they were not contained within previous C either as initially issued or as amended. In your advisory request letter, you assert that D does not vest A with authority to set policy or access or expend public funds. You assert that Paragraph [specific paragraph] references only F and does not discuss public monies. You contend that Paragraph [specific paragraph] [asserted interpretation of specific paragraph]. January 18, 2019, Advisory Rea est Letter, at 4 (Note 3). You assert that Paragraph [specific paragraph] does not provide A with the ability to expend any public funds, but rattier, [asserted interpretation of specific paragraph]. January 18, 2019, Advisory Request Letter, at 4. With regard to Paragraph rspecific paragraph], you contend that the authority ofAto [specific authority)- -and presumably Gs as well- -does not assume or imply that such would be compensated in any manner. You argue that the common and approved usages of the terms [specific terms] do not su port an assertion that A may expend public funds. You argue that neither term anticipa es or requires that A expend public funds in performing such activities. You state, "[A]t most [A] is empowered to request that such individuals assist [A] in fulfilling its mission, duties and responsibiljties, at no cost to the Commonwealth." January 18 2019 Adviso Request Letter, at 4. You argue that nothing in D permits A to establish public tunding sources, access public 'funding sources, or expend public funds. You claim that even if A wished to expend public funds, it would be practically unable to do so as it does not receive an appropriation from the Legislature, and therefore there exist no funds to "expend." Asserting that to require a certain category of A appointees to file Statements of Financial Interests would have a chilling effect on their recruitment and retention, you request that this Commission issue a formal confidential Opinion consistent with your analysis. By letter dated February 21, 2019, you were notified of the date, time and location of the executive meeting at which your request would be considered. At the executive meeting on March 1, 2019, representatives of your office appeared and offered arguments which maybe fairly summarized as follows: (1) that words matter; (2 }that the words chosen in drafting D were chosen carefully and deliberately; (3) that A is purely advisory; (4} that there is nothing in D that would authorize A to expend public funds; {5} that factually, A has no appropriation and therefore has no public funds to expend; (6) that the common and approved u s ag es of the terms [specific terms] do not a horizefrequire payment; and (7 }that a contrary interpretation would involve "engrafting" words onto the words of D. Ill. DISCUSSION: It is initially noted that pursuant to Sections 1107 {10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1'107(10), (11), advisories are issued to thhe requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, this Commission does not engage in an independent Confidential Opinion, 19 -004 March Page 3 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 truthfu y 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 judicial 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 first portion of the Ethics Act's definition of the term "public official" provides that a public official is a "person" defined to include, inter alia, an individual, business, corporation or firm, 65 Pa.C.S. 1102 which is: (1)) eeceTSy the public; (2) elected or appointed by a governmental body; or 3) an appointed official in the executive, legislative or judicial branch of the Commonweal h of Pennsylvania or a political subdivision of the Commanwealth. Muscalus, Opinion 02 -007. When the first portion of the definition is met, status as a public o cia�ubject to the Ethics Act is established, unless the exception for members of purely advisory boards lacking authority to expend public funds, other than reimbursement for personal expense, is applicable. Eiben, Opinion 04 -002. 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 expend 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 Confidential O inion, 19 -004 March Page 4 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. (ii) The term does not include judges and inspectors of elections, notary publics and political 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. (F 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 the instant matter, the fact that B appointed the A Members on whose behalf you have inquired satisfies the first portion of the definition of "public official" see, 65 Pa.C.S. § 1102 (definitions of "public official" and "governmental body "); [cites]. Confidential Opinion, 19 -004 March 5, Page 5 In considering whether the advisory board exception would apply, Paragraphs [specific paragraphs] of D consist of purely advisory duties and responsibilities. Paragraphs [specific pparagraphs] of D are vague and ambiguous, but based upon the submitted facts, may be understood to be purely advisory duties and responsibilities. As for [specific paragraph] in particular, the common and approved usages of the terms [relevant terms] are broad enough to encompass both compensated and uncompensated arrangements with Hs. See, BLACK'S LAW DICTIONARY at [page numbers] (10th ed. 2014), MERRIAM- WEBSTE=R ONLINE DICTIONARY (2019). You have factually represented that any such arrangements with A are necessarily uncompensated. Therefore, you are advised that based upon the submitted facts that A has no power or authority to expend public funds (such as, for example, to enter into contracts or commit funds) or to otherwise exercise the power of government, the Members of A on whose behalf you have inquired are not "public officials" subject to the provisions of the Ethics Act in that particular capacity and are not required to file Statements of Financial Interests pursuant to the Ethics Act in such capacity. Those Members who hold other position(s) in which they are public officials/public employees subject to the Ethics Act must file Statements of Financial Interests pursuant to the Ethics Act with respect to such other position(s). Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV. CONCLUSION: Based upon the submitted facts that the A has no power or authorityy to expend public funds (such as, for example, to enter into contracts or commit funds) or to otherwise exercise the power of government, the Members of A appointed by B on whose behalf you have inquired are not "public ublic officials" subject to the provisions of the Public Official and Employee Ethics Act (tthe "Ethics Act "), 65 Pa.C.S. § 1101 et seq., in that particular capacity and are not required to file Statements of Financial Interests pursuant to the Ethics Act in such capacity. Those Members who hold other position(s) in which they are Vofficials/public employees subject to the Ethics Act must file Statements of Financial Interests pursuant to the Ethics Act with respect to such other position(s). The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. By the Commission, Ni olas A. Colafella Chair Commissioner Monique Myatt Galloway, Commissioner Michael A. Schwartz, and Commissioner Shelley Y. Simms dissent based upon their belief that Paragraph [specific paragraph) of D authorizes the expenditure of public funds, and that, therefore, Members of the A are `public officials" as defined in the Ethics Act.