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HomeMy WebLinkAbout90-559 KrempaskySTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 5, 1990 Mr. Michael D. Krempasky 90 - 559 Executive Director Environmental Resources Post Office Box 2357 Harrisburg, PA 17120 Re: Public Employee /Official, FIS, Citizens Advisory Council to DER, Environmental Quality Board. Dear Mr. Krempasky: This responds to your letter of April 12, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether individuals as members of the Citizens Advisory Council to the Department of Environmental Resources ,(DEFT) and those individual members who may also serve on the Environmental Quality Board (EQB) are to be considered "public officials" under the State Ethics Law, and therefore, required to comply with the financial reporting and disclosure provisions of the State Ethics Law. Facts: As the Executive Director of the Citizens Advisory Council and at the specific authorization of the. Chairperson and Councilmembers of the. Citizens Advisory Council (CAC) of DER, you seek an advisory opinion regarding the applicability of the financial disclosure requirements of the State Ethics Law to the members of the CAC. The CAC is permanently established advisory group with mandated responsibilities set forth in Act 275 of 1971. The members of the council who are appointed by the Governor, Speaker of the House of Representatives, President Pro Tempore of the Senate perform advisory functions, that is, to study and review environmental laws of the Commonwealth and the work of DER and to make recommendations for improvement to the Governor, the General Assembly and DER. The members of CAC serve without compensation but are reimbursed for travel expenses. The CAC does have the "power to employ and fix the compensation of such experts, stenographers, and assistants as may be 4eemed necessary to carry out the work of the Council." Council also employs its own Executive Director, Administrative Staff and Page 2 conducts public meetings in various regions of the Commonwealth to hear testimony on matters concerning the environment. The CAC publicizes its written position, statements, reports, press releases and testimony before regulatory and legislative agencies. The CAC elects five members and several alternates to serve on the twenty -one member EQB which has the authority of adopt and promulgate DER rules and regulations. You ask whether the members of GAC are public officials required to file the Financial Interests Statement and also whether those CAC members who serve on the EQB and their alternates are subject to financial disclosure requirements. You submit an appendix which is incorporated herein by reference and sets forth a summary of certain laws regarding the CAC and EQB. Under Section 1922 -A of Act 275 of 1971 the CAC is required to review all environmental laws of the Commonwealth and make suggestions for their revision modification and as such shall consider, study and review the work of DER for such purposes. The CAC may advise DER and make recommendations as to certain initiatives or improvements for that department and shall annually report to the Governor and General Assembly and make such reports as are necessary. .Under Section 471 and 1920 -A of Act 275 of 1971 the CAC shall designate five members to serve on the EQB which shall have the responsibility for developing a master environmental plan at the Commonwealth as well as having the power and duties to formulate, adopt and promulgate such rules and regulations as may be determined by the board for the performance of work of DER and such rules and regulations shall become the rules and regulations of DER. In addition the EQB shall exercise the power to formulate, adopt and promulgate regulation, exercise the power of subpoena, receive and review reports from DER and advise the secretary of DER in such matters, establish rules and regulations for the Control Management Protection Utilization Development Occupancy in use of lands and resources of state parks and establish such rules and regulations for the Control Management Protection Utilization Development Occupancy in use of lands and resources of state forests to conserve the interests of the Commonwealth. Discussion: We have been asked to review the question of whether members of the CAC and those members of the CAC who serve on the EQB are subject to the financial reporting and disclosure requirements of the State Ethics Law. We note that, for the sake of this response, we are relying primarily on powers and duties as set forth in the laws of the Commonwealth. The primary question to be answered is whether the members of CAC and those members of CAC and their alternates who serve on the EQB are to be considered "public officials" as that term is defined in the State Ethics Law: Page 3 Section 2. 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 the State or any political subdivi- sion thereof, provided that it shall not in- clude 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. It is necessary to analyze the duties, functions and responsibilities of CAC and EQB in order to determine whether the board members are covered under the definition of public official. The powers or duties of CAC and EQB are set forth in the facts as outlined above. Based upon the definition of "public official" and in light of the limited functions in such position, we conclude that those members of CAC who are limited solely to their service on that particular council are not to be considered "public officials" as that term is defined in the State Ethics Law. Thus, because the above referenced members of CAC do not fall within the classification of the term "public official," they would not be subject to the financial reporting and disclosure requirements of the State Ethics Law. Accordingly, they would not be required to file the Statement of Financial Interest for the years in which they served. Turning to the question of the members of CAC or their alternates who also serve on the EQB, the question to be answered is whether those individuals are encompassed within the term "public official" as defined in the Ethics Law and the regulations of the Commission. "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 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 other than reimbursement for personal Page 4 expense, or to otherwise exercise the power of the. State or any political subdivision thereof. 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: (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. Page 5 (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 1.1. Also, in reviewing your question, the Commonwealth Court in its ruling in Phillips v. State Ethics Commission, 79 Pa. Commw. Ct. 491, 470 A.2d 659 91984), at page 661, directs us 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 your duties and responsibilities, we must conclude that you are a "public official" subject to the financial reporting and disclosure requirements of the State Ethics Act. In their capacity as members of EQB these members of Council or their alternates have the power to establish rule$ and regulations in the various areas as outlined above which powers and duties would constitute the exercise of governmental powers as outlined in the definition and regulations quoted above. In this case, 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 their duties and responsibilities as outlined above, we must conclude that they are "public officials." Page 6 Conclusion: Those members of the Citizens Advisory Council to DER who serve on that Council only are not considered "public officials" as that term is defined under the Ethics Law and as such they are not required to file the Financial Interests Statements. As to those members of the CAC or their alternates who serve on the EQB, said members are public officials required to file the Financial Interests Statements. If they 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. Pursuant to Section 7(11), 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. such. This letter is a public record and will be made available as 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 formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 2.12. cerely, Vincent 1l Dopko, Chief Counsel