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HomeMy WebLinkAbout92-509Dear Mr. Berkoben: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11:70 HARRISBURG. PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF,COUNSEL January 17, 1992 Mr. Robert Berkoben Personnel Officer Office of Administration 92 -509 Room 222, Finance Building Harrisburg, PA 17108 -1470 Re: Pennsylvania Heritage Affairs Commission; Folklife Advisory Council; Member; Public Official; FIS This responds to your letter of November 26, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the members of the new Pennsylvania Heritage Affairs Commission and the Folklife Advisory Council are to be considered "public officials" as that term is defined in the Public Official and Employee Ethics Law, and therefore, whether the members are required to file a Statement of Financial Interests. Facts: As Personnel Officer for the Office of Administration, Office of Personnel Services, you seek the advice of the State Ethics Commission as to whether the members of the new Pennsylvania Heritage Affairs Commission (PHAC) and the Folklife Advisory Council (FAC) are to be considered "public officials" as that term is defined in the State Ethics Law and the regulations of this Commission. You have submitted a copy of Executive Order 1991 -8 which established the PHAC and the FAC, which Executive Order is incorporated herein by reference. Discussion: It is necessary to analyze the duties, functions and responsibilities of the members of the PHAC and the FAC in order to determine whether they are covered under the definition of public official as set forth in the Ethics Law and the Regulations of the Commission. Philips v. State Ethics Commission, 79 Pa. Commw. Ct. 491, 470 A.2d 659 (1984). The powers or duties of the members of the PHAC and the FAC are set forth in Executive Order 1991 -8. The functions of the PHAC are set forth as follows: Mr. Robert Berkoben January 17, 1992 Page 2 1. Functions of the Commission. The Commission shall: a. Advise the Governor on: (1) Governmental and nongovernmental programs and activities relating to or affecting ethnic or nationality groups, individuals, organizations, institutions, or communities in general, including their social, economic, educational, and cultural concerns. (2) The participation of various ethnic organizations, institutions, or individuals in government affairs. (3) The commemoration of historical events and official recognition of outstanding accomplishments and contributions to the Commonwealth of Pennsylvania by individuals or organizations from within the ethnic communities. b. Sponsor and promote events and projects that will increase the public's knowledge and appreciation of Pennsylvania's diverse cultural heritage. c. Develop and implement programs addressing issues faced by ethnic or nationality groups or communities as needed. d. Assist relevant state and local agencies to develop programs and policies which foster the conservation of Pennsylvania's cultural heritage. e. Establish and maintain associations with various ethnic and nationality oriented organizations in the state, including their publications and religious, cultural, academic, and economic institutions. f. Solicit, receive, and utilize funds from any public or private source to promote its programs. g. Establish advisory councils, as Mr. Robert Berkoben January 17, 1992 Page 3 appropriate, to provide specialized expertise to the Commission and its staff. h. Meet at the call of the Chairperson. i. Submit to the Governor such reports as necessary regarding the Commission's accomplishments and recommendations. The duties of the Folklife Advisory Council are set forth in Executive Order 1991 -8 as follows: g. State Folklife Programs. To aid the conservation of Pennsylvania's diverse cultural heritage, a Director of State Folklife Programs shall be appointed by the Executive Director upon recommendations from a Folklife Advisory Council. The Director of State Folklife Programs shall serve as a resource and as a catalyst to individuals, organizations, and communities throughout the Commonwealth who seek to preserve and present their cultural traditions.to the general public. The Director of State Folklife Programs shall seek appropriate means for documentation, presentation, and interpretation of Pennsylvania's diverse folk cultural traditions. h. Folklife Advisory Council. Upon recommendation by the Commission and its Executive Director, the Governor shall appoint specialists in ethnic and folk cultural studies and programming to serve on the Folklife Advisory Council, which shall advise the Director of State Folklife Programs. The question to be answered is whether the duties and functions of the members of the PHAC.and the FAC are encompassed within the term "public official" as defined in the Ethics Law and Regulations of the Commission. The Ethics Law defines the term "public official" as follows: "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 Mr. Robert Berkoben January 17, 1992 Page 4 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 powez of the State or any political subdivision thereof. 65 P.S. S402. The regulations of the State Ethics Commission provide in pertinent part: Section 1.1 Definitions Public official -- An elected or appointed official in the executive, legislative or judicial branch of the government of the Commonwealth or its political subdivisions. The term 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. Mr. Robert Berkoben January 17, 1992 Page 5 51 Pa. Code 51.1. (II) The body exercises a basic power of government and performs essential governmental functions. (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. We must review the question you present under these provisions of the statute and the regulations of the Commission in light of the duties and responsibilities of the members of the PHAC and the FAC as described above. Our inquiry necessarily focuses upon the position itself and not on the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying a position may carry out those functions. See Philips v. State Ethics Commission, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984); Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Also, in reviewing your question, the Commonwealth Court in its ruling in Phillips, supra, 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 Mr. Robert Berkoben January 17, 1992 Page 6 definition of "public official" in the statute and the regulations and opinions of this Commission, in light of the duties and responsibilities of the members of the PHAC and of the FAC as set forth above, we must conclude that members of the PHAC are "public officials" subject to the Ethics Law and specifically subject to the financial reporting and disclosure requirements of the State Ethics Act, but members of the FAC are not "public officials" and therefore are not required to file statements of financial interests. These conclusions are based upon the following analysis. Although the PHAC does have an advisory role, it also has the power to take independent action in sponsoring and promoting events and projects, developing and implementing programs, and assisting state and local ,agencies in developing programs and policies, through which the PHAC exercises the power of the Commonwealth of Pennsylvania. Furthermore, in performing these governmental functions, the PHAC is specifically authorized to solicit, receive, and utilize public funds as well as private funds to promote its programs. The powers, duties and responsibilities of the PHAC members establish their status as within the definition of "public official" as set forth in the Ethics Law and in the regulations of the Commission. 65 P.S.S402; 51 Pa. Code S1.1. Furthermore, members of the PHAC would clearly not fit within the exception to the statutory definition of the term "public official," because they are not limited to advisory functions but clearly have the authority to exercise the power of the State and to spend public funds other than for mere personal expense reimbursements. In contrast, the limited functions of members of the FAC appear to be advisory only. Specifically, members of the FAC make recommendations regarding the appointment of the Director of State Folklife Programs and act in an advisory capacity to said Director. In light of the limited functions of members of the FAC, we conclude they are not to be considered "public officials" as that term is defined in the Ethics Law. Thus, because members of the FAC would not fall within the classification of the term "public official," they would not be subject to the financial reporting and disclosure requirements of the Ethics Law. Accordingly, they would not be required to file the Statement of Financial Interests for the years in which they served. It is noted for informational purposes that although the members of the FAC would not be considered public officials subject to the Ethics Law, this is subject to the qualification that Sections 3(b) and 3(c) apply to everyone. such. Mr. Robert Berkoben January 17, 1992 Page 7 Sections 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 anything 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 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. Conclusion: Members of the Pennsylvania Heritage Affairs Commission are -to be considered "public officials" subject to the provisions of the Ethics Law, and accordingly each member must file a Statement of Financial Interests for each year in which the office is held and for the year following the termination of service. Members of the Folklif a Advisory Council are not to be considered "public officials' as defined in the2thics Lair, and accordingly, they would not be subject to the reporting and disclosure requirements of the Ethics Law and need not file a Statement of Financial Interests. Section 3(b) and (c) of the Ethics Law are applicable to everyone. Lastly, the request for advice has only been addressed under the Ethics Law. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. If they have not already done so, members of the Pennsylvania Heritage Affairs. Commission must file a Statement of Financial Interests within 15 days of this Advice. This Statement of Financial Interests would report information of the prior calendar year. The original of such a Statement must be filed with this Commission, the yellow copy must be filed with the Secretary of Administration, and the green copy may be retained by the individual filing for his or her records. 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. 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 Mr. Robert Berkoben January 17, 1992 Page 8 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. Sincerely, Vincent 3. Dopko Chief Counsel �!�f b4