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HomeMy WebLinkAbout90-596 SteinSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 Ms. Sissy Stein Greensburg Garden & Civic Center 951 Old Salem Road Greensburg, PA 15601 Re: Public Employee /Official, FIS, Greensburg Garden & Civic Center, Board of Directors, Executive Director. Dear Ms. Stein: ADVICE OF COUNSEL September 21, 1990 90 -596 This responds to your letters of August 8 and August 20, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the board of directors and executive director of a garden & civic center are to be considered a "public employee" or "public official" under the State Ethics Law, and therefore, required to comply with the financial reporting and disclosure provisions of the State Ethics Law. Facts: Pursuant to a direction of your city administrator you are inquiring as to whether the Board of Directors of the Greensburg Garden & Civic Center (Center) and yourself as Executive Director are required to file Financial Interests Statements. You note that you have separated as part of the City of Greensburg and have acquired 5013C tax exempt status. You have also supplied a copy of your job description Executive Director together with the by -laws of the Center which has been incorporated under the laws of Pennsylvania to inter alia purchase or sell property with the approval of two - thirds of the members of the Board of Directors, conduct lawful activities of the corporation including charging fees and prices for services and products together with the receipt of income and the making of an incidental profit to be applied to the maintenance and operation of lawful activities with all checks or demands and notes being signed by such officer or officers as the Board of Directors may designate. Discussion: The primary question to be answered is whether the Board of Directors of the Center are to be considered "public officials" as that term is defined in the State Ethics Law: Ms. Sissy Stein Page 2 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 the Center in order to determine whether the Board members are covered under the definition of public official. The powers or duties of the Center are set forth in the by- laws which reflect that the Center is now a corporation divorced from the City of Greensburg. Based upon the definition of "public official" and in light of the limited functions in such position, we conclude that each member of the Board of Directors of the Center is not to be considered a "public official" as that term is defined in the State Ethics Law. Since the Center is now incorporated and divorced from the City of Greensburg and since the Board of Directors are not public officials, it follows that you as Executive Director are not a public employee as that term is defined under the Ethics Law. Thus, because Board of Directors of the Center 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 serve. Likewise, you as Executive Director are not a public employee and therefore are not required to file a Financial Interests Statement in your position with the Center. Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made Ms. Sissy Stein Page 3 to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: Each member of the Board of Directors and the Executive Director of the Greensburg Garden & Civic Center are not to be considered a public official /employee as defined in the State Ethics Law. Accordingly, these individuals would not be subject to the reporting and disclosure requirements of the State Ethics Law and need not file a Statement of Financial Interests. Sections 3(b) and (c) of the Ethics Law are applicable to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 52.12. cerely, - cAYN Vincent `J'. Dopko, Chief Counsel