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HomeMy WebLinkAbout19-523 SmithPHONE: 717-783-1610 TOLL. FREE: 1-800-932-0936 To the Requester: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL 18221M Diane Smith, Chair City of Butler Shade Tree Commission Dear Ms. Smith: FACSIMILE: 717-787-0806 WEBSITE: wwwothics.Da.cio I LOB W291 This responds to your letter dated March 19, 2019, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether, as a Member and Chair of the City of Butler Shade Tree 7o—mmission, you would be considered a "public official" subject to the Public Official and Employee Ethics Act Ethics he "Ethics Act"), 65 Pa.C.S. § 1101 et and the ReNulations of the State Commission, 51 Pa. Code § 1f-.1 et se., and particularly, the requirements for filing Statements of Financial Interests. Facts: You seek a determination as to whether, in your capacity as a Member -5-6-d-Chair of the City of Butler Shade Tree Commission ("Shade Tree Commission"), 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. You have submitted a copy of Chapter 220 of the Code of the City of Butler ("City Code"), which provides, in pertinent part, as follows: Chapter 220. Shade Trees § 220-1. Shade Tree Commission established. There is hereby established a Commission consisting of seven residents of the City to be known as the Shade Tree Commission under the provisions of 53 P.S. § 38801 et seq. § 220-2. Appointment of Commission members; term. The Mayor is hereby authorized and directed to appoint seven residents of the City as Commissioners. § 220-3. Jurisdiction of Commission. The Shade Tree Commission shall have full custody and control of the shade trees and other plant materials, grass excepted, within the rights -of -way of public streets and Smith, 19-523 Way- 29, 2019 Page 2 highways and in all public areas within the City limits, including trees and shrubs on private properties, insofar as their limbs and branches may overhang , public streets, highways and other public areas. § 220-4. Rule changes. The Shade Tree Commission, with the approval of Council shall have the power to amend any of the rules and regulations as set forth in this chapter if, in the opinion of the Commission, public policy or arboricultural requirements shall indicate the advisability of making a change or changes from these established rules. § 220-5. Notice to property owners. It shall be the policy of the Shade Tree Commission to cooperate with the public and property owners insofar as possible at all times, and no planting or removal of any plant materials of a public nature shall be undertaken without notifying the property owners in advance. This shall not include such minor items of work such as pruning, bracing, bolting or spray' ing which may be of a seasonal nature or which may be done by reason of immediate danger to the r safety of he public or for proper protection of the trees or shrubs. § 220-10. Height clearance. No person, firm or corporation or its agents or representatives shall maintain any trees, shrubs or evergreens overhanging the traveled or used portion of any public rights -of way, streets or highways, unless the same shall have an adequate clearance, wet or d to permit pedestrian and/or vehicular traffic, The Shade Tree Commission shall have the right to designate, from time to time what shall constitute an adequate clearance wherever time, condition of the siteshall warrant a specific clearance for public safety or convenience. § 220-12. Criteria for removal of trees. Only such trees or other items of plant material shall be removed from the public rights -of way, streets, highways or from public property as shall be considered by the Shade Tree Commission to constitute a definite hazard to life or ,= a public nuisance or a definite threat to the uninterrupted service of thepublic utilities within the City or because of a change or revision in the planting plans for the City trees. § 220-13. Species. Only such trees shall be planted as shall meet with the agroval of the Shade Tree Commission from the standpoints of good appearance, longevity, freedom from Smith, 19-523 WP9, 2019 Page 3 insect and other diseases or trees of exceptional value in articular locations within the City. Where entire street locks are to be planted, only one species shall be planted in any one given lock unless the Shade Tree Commission shall have reason to grant a variance from this rule .... § 220-14. Planting diameter and height. A. All trees to be planted within the public rights -of -way, streets highways or upon public property wit the City, shall not be less than one and one-half (1 1/2) inches in diameter, six inches above the ground, and at least 10 feet in height unless specifically specified otherwise by the Shade Tree Commission for use in some particular location where a smaller or balled type of tree may be advisable. B. ... Bottom branches shall be seven feet above the ground unless otherwise specified by the Commission, 220-15. Planting location and spacing. All trees in public streets and highways of the City shall be planted in the center of the strip between the cur and the sidewalk, unless otherwise specified or allowed by the Shade Tree Commission .... § 220-16. Planting holes. All trees, unless directed otherwise by the Shade Tree Commission, shall be planted in holes [meeting certain requirements]. § 220-20. Workmen's compensation. No person, firm or corporation nor any employe thereof shall be employed by the City or it Tree Commission in connection with any of the work covered or contemplated under the provisions of this chapter unless he, she, it or they have furnished to the City Clerk proof of carriage of satisfactory workmen's compensation insurance so as to afford proper protection to the City and the Commission. Code of the City of Butler, Chapter 220. You state that although there is a separate checking account to fund the activities of the Shade Tree Commission, the Members of the Shade Tree Commission do not have direct access to the monies and all expenditures are subject to City Council's approval. You state that in order for the Shade Tree Commission to make an expenditure, either a Shade Tree Commission Member or a Council liaison must complete a requisition form that is subsequently initialed the Member of City Council who is the Director of Administration and Finance. After expenditure is made, it is approved by City Council as part of the warrant list of all City expenditures Discussion: It is initiall�noted that pursuant to Sections 1 107(l 0) and 11 07(l 1) , of the 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 Smith, 19-523 WP9, 2019 Page 4 upon the facts that the requester has submitted, the Commission does not en age in an independent investigation of the facts, nor does it speculate as to facts thathave 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 disc used 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 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 expendpublic 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 rants, borrow money, issue bonds, employ staff, purchase, grants, 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 whichare 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. (IV) The body a 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. Smith, 19-523 Va—Y-29, 2019 Page 5 (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. (Vll)The body has the power of eminent domain or condemnation. e enabling legislation of the body indicates that theis established for exercising public powers of the Commonwealth or a political subdivision. ,(ii) The term does not include udges and inspectors of elections, notary publics and politicali 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. (P) 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 " the first portion of the definition provides that a public official is a person who is: (i) elected by the public; (2) elected or appointed by a governmental body; or (3) an appointed official in the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02-007. When the first portion of the definition is met, status as a public otticial subject to the Ethics Act is established, unless the exclusion for members of purely advisory boards is applicable. ELiben, 0 inion 04-002. The fact that Members of the Shade Tree Commission are appointedby the City Mayor satisfies the first portion of the definition. As for the remainder of the definition, the necessary conclusion is that you would not 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. Pursuant to Chapter 220 of the City Code, the Shade Tree Commission has full custody and control of the shade trees and other plant materials, grass excepted, within the rights -of -way of public Smith, 19-523 1vTay-29, 2019 Page 6 streets and highways and in all public areas within the City limits, including trees and shrubs on private properties insofar as their limbs and branches many overhang public streets, highways and other public areas. Chapter 20 of the City Code provides the Shade Tree Commission with the authority to: (1) designate adequate height clearance for trees, shrubs, or evergreens overhan ing public rights -of way, streets or highwa,ys when site conditions warrant a specific cearance for public safety or convenience; t2) approve what species of trees may be lanted and grant variances to the rule that where entire street blocks are to be planed, only one species shall be planted in any one given block; (3) specify under certain circumstances the diameter and height requirements for trees to be planted within the public rights -of -way, streets, highways or upon public property within the Cit and specify the height of the bottom branches of such trees; and (4 specify the location for trees to be planted next to public streets and highways. Given �Ihe foregoing authority, it is clear that the Shade Tree Commission goes beyond a purely advisory function. Therefore, based upon the provisions of the Ethics Act, the Regulations of the State Ethics Commission, and the Commission's Opinions, the necessary conclusion is that in your capacity as a Member and Chair of the Shade Tree Commission, you are a "'public official" subject to the Ethics Act and the Regulations of the State Ethics Commission" and you are required to file Statements of Financial Interests pursuant to the Ethics Act. Conclusion: As a Member and Chair of the City of Butler Shade Tree Commission, you are a "public official" subject to the Public Official and Employee Ethics Act (the "Ethics Act"), 55 Pa.C.S. § 1101 et se , and the Regulations of the Pennsylvania State Ethics Commission, 51 Pa. Coae11.1 et seg., and in particular, rs the requirements for filing Statements of Financial Interests puuanTto 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 Opin►on will be issued by the Commission. Any such appeal must be in writing and must be actu, alb! received at the Commission within thirty (30) days of the date-� this Advice pursuanf to 51 Pa. Code ,§ 1r3.2(h). The i appeal may be received at the Commission by hand delivery, Un►ted States mail, delivery service, or by FAX transmission (717-787-0806 . Failure to file such an appeal at the Commission within thirty (3�0) days may result in the dismissal of the appeal. Sinc rely, *R,i,. Hittie Chief Counsel