HomeMy WebLinkAbout19-008 PalmPHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
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HARRISBURG, PA 17120-0400
OPINION OF THE COMMISSION
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Melanie DePalma
Michael A. Schwartz
Shelley Y. Simms
DATE DECIDED: 9/26/19
DATE MAILED: 10/11/19
To the Requester:
Cathleen Palm
- 0073 TJ M 0.
1111�# I -*
This Opinion is issued in response to your letter dated April 11, 2019, by which you
requested an advisory opinion from the Pennsylvania State Ethics Commission
("Commission").
1. ISSUE:
Whether a Member of the Pennsalvania EarlLearning Council would be considered
a "public official" subject to the Public fficial and Employee Ethics Act (the "Ethics Act"),
65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa.
Code § 11.1 et agg�-,a-n-Tparticularly, the requirements for filing Statements of Financial
Interests.
11. FACTUAL BASIS FOR DETERMINATION:
You request an advisory opinion from this Commission as to whether, in your
capacity as a Member of the Pennsylvania Early Learning Council (the "ELC"), you would
be considered a "public official" subject to the Ethics Act, 65 Pa.C.S. § 1101 et seg., and
the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 eTsecl- and
particularly, the requirements for filing Statements of Financial Interests, — —'
We take administrative notice that the ELC was established by Executive Order
�Pailm, 19-008
0_cFobe r 11, 2019
Page 2
2008-07, issued September 11, 2008. Executive Order 2008-07 provides, in pertinent part,
as follows:
1 Purpose. The purpose of the [Pennsylvania Early
Learning Council ("Council")] is to plan for the
expansion of effective early learning and develo ment
services for young children and their families, anYmake
recommendations to ensure the plans are implemented
successfully. The Council will be responsible for
coordinating the delivery of these Federal and
Commonwealth programs designed to serve young
children from birth through their entry into school, and to
ensure a smooth transition for those children into K-1 2
education and other programs serving older children,
2. Powers and Duties. The Council will have the
following powers and duties, consistent with Federal
law:
a. Conducting periodic needs assessments
concerning the quality and availability of early
childhood learning and development programs
and services for children from birth to school
entry;
b. Identifying opportunities for, and barriers to,
collaboration and coordination among Federal]
funded and Commonwealth -funded child
learning, development, and education services,
and early childhood programs and services;
C. Developing recommendations for increasing the
overall participation of children in existing
Federal, Commonwealth, and Local child care
and early childhood learning, education, and
development programs;
d. Developing recommendations regarding the
establishment of a unified data collection system
for public early childhood learning, education,
and development programs and services
throughout the Commonwealth;
e. Developing recommendations regarding
Commonwealth -wide professional development
and career advancement plans for early
childhood educators;
f. Assessing the capacity
and effectiveness of 2-
year and 4-year public and private institutions of
higher education in the Commonwealth toward
supporting the development of early childhood
educators;
g. Making recommendations for improvements in
Commonwealth early learning standards;
Palm, 19-008
co er 11, 2019
Page 3
h. Developing and recommending updates to a
multi -year plan for the expansion of effective
early learning, education, and development
services;
I. Recommending policies and procedures that
assure the integration of the Early Intervention
system as part of the Commonwealth's approach
to early childhood learning, education, and
development;
Assuring the development of a sound continuum
from and between early childhood programs and
traditional public education, starting with
kindergarten;
k. Ensuring the development of early childhood
programs that identify and meet the needs of
infants and toddlers and their families;
1. Assuring an integrated approach to the design
and delivery of early childhood mental health
services across the Commonwealth;
M. Providing ongoing input and advice to [the Office
of Child Development and Early Learning
("OCDEL" )] about royrams under its jurisdiction,
including without rimiation the development of
Early Intervention, Full-Dayy Kindercten,
Keystone STARS, Nurse-Farrii Partners PA
Pre-K Counts, and the Child Care Zrks
Subsidized Child Care Program;
n. Engaging parents to provide input and make
recommendations to strengthen the work of
OCDEL, and develop improved communication
strategies with families across the
Commonwealth regarding the importance of and
their role in quality early learning, education and
child development, and the programs o? the
Commonwealth in support of quality early
learniing;
0. Providing input to assure an adequate supply of,
and quality for, the early childhood workforce
needed to implement OCDEL's Programs;
P. Advising OCDEL in the creation of a
comprehensive professional development
system that applies to practitioners in alrearly
learning settings, with the goal of increasingthe
number of highly qualified early childhood
professionals;
Providing ongoing input to the development of
M 9-008
er 11, 2019
Page 4
the Early Learning Network, focusing on
discussion of technical as well as communication
and outreach needs, to support the sound
development of the Network across OCDEL
programs;
r. Ensuring that children with special needs are
properly supported by the state's early learning
programs;
S. Considering the overall early learning needs of
young children, and evaluating how those needs
are or are not met by OCDEL s services; and
t. Advocating for services that fulfill the early
learning needs of young children, particularly
services provided through OCDEL.
3. Composition. The Council will consist of ... members
appointed by the Governor ....
6. Relationship with other agencies. OCDEL will
provide staff andlor data support to the Council. All
romvmonwealth agencies under the Governor's
jurisdiction will cooperate with, provide assistance to,
and review the recommendations of the Council with
respect to its purpose, powers and duties, as set forth in
this Executive Order.
In your advisory request letter,
you assert that the ELC is
established/ope ratio na lized in a way that limits the ELC to an advisory role. You contend
that the ELC is not authorized to advise on the allocation of public funds and that the ELC
has no authority to expend public funds or exercise the power of the State.
You state that the ELC is not engaged in setting the Commonwealth's agenda or
funding priorities in relation to early childhood care and education. You state that the ELC
meets quarterly and receives largely informational/status updates from the Office of
Childhood Development and Early Learning (""OCDEL") within the Pennsylvania
Departments of Education and Human Services. You contend that although the ELC may
at times be engaged for feedback in response to reports from OCDEL officials about their
activities, ideas, or budgets, the ELC is not empowered with any decision -making authority.
You state that the ELC does not review budget requests prepared by OCDEL before
such requests are submitted as part of the annual budyet process. You further state that
the ELC does not review applications or other materials by which OCDEL may put out a
request for proposal for a specific program, service, or concept to be funded with public
do[lars. You additionally state that the ELC is not consulted in relation to hiring practices.
You question whether the requirement to file Statements of Financial Interests
serves a purpose, and you express your view that it is unreasonable to impose such a
bureaucratic burden on volunteers like you. You state that althou3h you have previously
filed Statements of Financial Interests, you now wish to be advise as to whether you are
legally obligated to continue to file the forms as a result of your service as a Member of the
Pair, 19-0108
0-cTc-ber 11, 21019
Page 5
ELC.
By letter dated August 14, 2019, you were notified of the date, time and location of
the public meeting at which your request would be considered.
111111. DISCUSSION:
It is initial noted that pursuant to Sections 1 107(l 0) and 11 07(l 1) of the Ethics Act,
65 Pa.C.S. §§ 1 t7(1 0), (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 i
requester has submitted, this Commission does not engage n 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.hj§ 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, le illative or judicial branch of this
Commonwealth or any poli ical 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. § 11012.
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
public
or firm 5 Pa.C.S, § 1102 which is: (1? 616cte�iTy the public; (2) elected or
orpappointed b a agovernmentalappointed official in the executive, legislative
cih
0 Ppdi al branch
Pennsylvania or axolitical subdivision of the
u
Commonwealth.
judicial
on ealth When the first portion of the definition is met,
omm w
status as a public
Act is established, unless the exception for
r,
m be s of
purelyauthority to expend public funds, other than
reimbursement mf
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
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 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
u nd.has a greater than de minimis economic impact on
Palm, 119-008
Z-cfo-ber 11, 2019
Page 6
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.
(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 may compel the governing authority to
act in accordance with the body's decisions or restrain the
overning authority from acting contrary to the body's
ecisions,
M 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.
(Vlll)The enablinlegislation of the body indicates that
the body is establishedfor exercising public powers of the
Commonwealth or a political subdivision.
(ii) The term does not include judg
es 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
Ro19-008
Mmer 11, 2019
Page 7
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 the Governor appoints the Members of the ELC
satisfies the first portion of t1ke definition of the term "public official" (see, 65 Pa.C.S, 1102
definitions of "public official" and "governmental body"); PA CONT ��.aRT. IV, Sec ion 1;
5nqn, Opinion 04-014; Cohen, Opinion 03-006.
As for the remainder of the definition, we conclude that in your capacity as a Member
of the ELC, 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. In
considering the powers and duties of the ELC as set forth in Executive Order 2008-07,
Section 2, it is clear that although the ELC performs some advisory functions, for purposes
of applying the Ethics Act, the ELC goes beyond advisory functions. Specifically, the
duties/authority of the ELC to: (1) conduct periodic needs assessments concerning the
quality and availability of early childhood learning and development programs and services
for children from birth to school entry; (2) assess the capacity and effectiveness of two-year
and four-year public and private institutions of higher education in the Commonwealth
toward supporting the development of early childhood educators; (3) assure the
development of a sound continuum from and between early childhood programs and
traditional public education; (4) ensure the development of early childhood programs that
identify
t and meet the needs of infants and toddlers and their families; (5) assure an
Integrated
ntegra ed approach to the desi n and delivery of early childhood mental health services
across the Commonwealth; (6? ensure that children with special needs are properly
supported by the state's early learning programs; and (7) evaluate how the overall early
learning needs of young children are or are not met by OCDEL's services, would exceeda
r
r
purely advisory function.
Coverage under the Ethics Act is to be construed broadly and exclusions under the
Ethics Act are to be construed narrowly. See, Quaglia v. State Ethics Commission, 986
A.2d 974 (Pa. CmwIth. 2010), amended F_y. 2010 Pa, Comrnw, ERIS 8 Pa. CmwIth.
n1111 s
January 5, 2010), allocatur d'eriied, 607 Pa.' 708, 4 A.3d 1056 (2010); Phi Ii s v. State
a ove
Ethics Commission, 470 A.2d 659 (Pa. Cmw1th. 1984). Base c 3,.ygu are
as a ember i
a vise 1h at M ber of the ELC, you are a "Public official" subject ct to the provisions of
the Ethics Act and the Regulations of this Commission, and in particular, the requirements
for filing Statements of Financial Interests pursuant to the
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
IV. CONCLUSION:
In our capacity as a Member of the Pennsylvania Early Learning Council, you area
nt.jblic official" subject to the provisions of the Public Official and Employee Ethics Act (the
Lf6ics Act"), 65 Pa.C.S. § 1101 et sgg., and the Regulations 7the State Ethics
Commission, 51 Pa. Code § 11.1 e—tse—g., and in particular, the requirements for filing
Statements of Financial Interests pursuant to the Ethics Act.
Act. The propriety of the proposed conduct has only been addressed under the Ethics
R 9-008
-'Imcler 11, 2019
Page 8
Pursuant to Section 1107(10) of the Ethics Act, 65 Pa. C.S. § 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 he Commission,
0
NihulasA. Colafella
Chair