HomeMy WebLinkAbout19-510 ConfidentialPHONE: 717 - 783 -1610
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To the Requester:
ADVICE OF COUNSEL
March 13, 2019
FACSIMILE: 717 -787 -0806
WEBSITE: www.ethics.pa .gov
19 -510
This responds to your letter dated January 24, 2019, by which you requested a
confidential advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
pa 7.S. § 1101 et seg., would impose prohibitions or restrictions upon an individual) who
is serving as both a member of an A B and a member of a C B with regard to
participating in discussions or other actions pertaining to the issue of whether the
current boundaries of a D should be expanded to include additional E(s) within one or
more of [number] Fs, where: (1) the individual's G is the H and an I of a ..!! that owns a K
L; (2) the individual's G acquired an M L adjacent to the J L in order to facilitate the sale
of the J L; and (3) both of the aforesaid Ls are adjacent to the current boundaries of the
D and are located within one of the [number] Fs.
Facts: You request a confidential advisory from the Commission based upon
submitted facts, the material portion of which may be fairly summarized as follows.
You are a Member of an A B, hereinafter referred to as "Governmental Body 1."
You are also a Member of a C B, hereinafter referred to as "Governmental Body 2," that
serves a group of [number] Fs (the "[number] Fs "). You state that Governmental Body 1
and Governmental Body 2 serve as advisory boards to their respective A and C Ns as
well as elected officials. The Members of Governmental Body 1 and Governmental
Body 2 are not compensated.
There is currently a D that includes Es in all but one of the [number] Fs. The D is
a mechanism for implementing an O.
Your G is the H and an I of a J that owns a K L. Your G acquired an M L
adjacent to the J L in order to facilitate the sale of the J L. Both of the aforesaid Ls are
adjacent to the current boundaries of the D and are located within one of the [number]
Fs, hereinafter referred to as "F -1."
Governmental Body 1 and Governmental Body 2, as advisory boards on [type of
matters], may soon be expected to comment on whether the current boundaries of the
D should be expanded to include additional Es within one or more of the [number] Fs,
and if so, what Es should be added to the D.
Confidential Advice, 19 -510
March
Page 2
Based upon the above submitted facts, you ask whether, in your capacity as a
Member of Governmental Body 1 or in your capacity as a Member of Governmental
Body 2, you would have a conflict of interest with regard to participating in discussions
or other actions pertaining -to the issue of whether the current boundaries of the D
should be expanded to include: (1) E(s) in F -1 within the vicinity of the J L and the L
acquired by your G: (2) E(s) in F -1 not within the vicinity of the aforesaid Ls; or (3) E(s)
not in F -1.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
e Ethics Act, 65 Pa.C.S. §§ 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. §§ 11070 0 , (11). An advisory only affords a
defense to the extent the requester has truthfully disc osed all of the material facts.
In responding to your inquiry, the threshold question to be addressed is whether,
in your capacity as a Member of Governmental Body 1 or in your capacity as a Member
of Governmental Body 2, you would be considered a public official subject to the
provisions of the Ethics Act.
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 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:
JA) 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.
Confidential Advice, 19 -510
March
Page 3
(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.
(11) 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.
(1V) 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.
Confidential Advice, 19 -510
March ,
Page 4
(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" to the submitted
facts, the necessary conclusion is that in each of your capacities as a Member of
Governmental Body 1 and a Member of Governmental Body 2, 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. This conclusion is based upon your
factual submission that Governmental Body 1 and Governmental Body 2 serve as
advisory boards to their respective A and C Ns as well as elected officials. There is no
indication in the submitted facts that either Governmental Body 1 or Governmental Body
2 performs function(s) which are not purely advisory, or that either Governmental Body
1 or Governmental Body 2 has 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, based upon the submitted facts, you are advised that in each of your
capacities as a Member of Governmental Body 1 and a Member of Governmental Bod
2, you are not a "public official" as that term is defined in the Ethics Act. Cf., cites .
Thus, in each of our aforesaid capacities, you are not subject to the restrictions of
Section 1103(a) of the Ethics Act (pertaining to conflict of interest).
In response to your specific questions, you are advised that Section 1103(a) of
the Ethics Act —which does not apply to you in your capacity as a Member of
Governmental Body 1 or in your capacity as a Member of Governmental Body 2 —would
not prohibit you from participating in discussions or other actions of Governmental Body
1 or Governmental Body 2 pertaining to the issue of whether the current boundaries of
the D should be expanded to include: (1) E(s) in F-1 within the vicinity of the J L and the
L acquired by your G: (2) E(s) in F -1 not within the vicinity of the aforesaid Ls; or (3)
E(s) not in F -1.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act; the applicability of any other statute, code, ordinance, regulation or other
code of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act.
Conclusion: Based upon the submitted facts that: (1) you are a Member of an A
,Mere na r referred to as "Governmental Body 1"; (2) you are also a Member of a C
B, hereinafter referred to as "Governmental Body 2," that serves a group of [number] Fs
(the "[number] Fs "); (3) Governmental Body 1 and Governmental Body serve as
advisory boards to their respective A and C Ns as well as elected officials; (4) the
Members of Governmental Body 1 and Governmental Body 2 are not com ensated; (5)
there is currently a D that includes Es in all but one of the [number] Fs; 76) the D is a
mechanism for implementing an O; �7� your G is the H and an I of a J tha owns a K L-
(8 your G acquired an M L adjacen o the J L in order to facilitate the sale of the J L;
9 both of the aforesaid Ls are adjacent to the current boundaries of the D and are
located within one of the [number] Fs, hereinafter referred to as "F-1"; and (10)
Governmental Body 'I and Governmental Body 2, as advisory boards on [type of
matters], may soon be expected to comment on whether the current boundaries of the
D should be expanded to include additional Es within one or more of the [number] Fs,
and if so, what Es should be added to the D, you are advised as follows.
In each of your capacities as a Member of Governmental Body 1 and a Member
of Governmental Body 2, you are not a "public official" as that term is defined in the
Confidential Advice, 19 -510
March
Page 5
Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa-C.S. § 1101 et seq. Thus,
in each of your aforesaid capacities, you are not subject to the restrictions of Section
I 103(a) of the Ethics Act (pertaining to conflict of interest).
Section 1103(a) of the Ethics Act —which does not apply to you in your capacity
as a Member of Governmental Body 1 or in your capacity as a Member of
Governmental Body 2—would not prohibit you from participating in discussions or other
actions of Governmental Body 1 or Governmental Body 2 pertaining to the issue of
whether the current boundaries of the D should be expanded to include: (1) E(s) in F -1
within the vicinity of the J L and the L acquired by your G: (2) E(s) in F -1 not within the
vicinity of the aforesaid Ls; or (3) E(s) not in F -1.
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 or this
Advice ursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery United States mail,
delivery service, or by FAX transmission (717'-7-87-0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
S
Robin M. Hittie
Chief Counsel