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HomeMy WebLinkAbout94-500 Confidentialoff, STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 11, 1994 Re: Board Director, Board A; Public Official; FIS 94 -500 This responds to your letter of November 29, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether a Board Member with Board A, hereinafter "Board ", is to be considered a "public official" as that term is defined in the Public Official and Employee Ethics Law, and therefore, whether such individual is required to file a Statement of Financial Interests. Facts: You question whether your activities and functions fall within the purview of the definition of "public official" as that phrase is defined in the State Ethics Law and the regulations of this Commission. You state that the Board is a quasi governmental board. At a recent monthly Board meeting, you raised the question with your fellow Directors as to whether you were bound by the Public Official and Employee Ethics Law and thus required to file Statements of Financial Interests. You state that you were concerned because the Board makes decisions on allocation of public monies for Project B and Project C. You indicate that the Board receives federal and state funds under Program D from Agency F and Department F, Bureau G. You have submitted a copy of the Board's latest informational booklet which contains the By -laws, Board composition, mission, etc., which document is incorporated herein by reference. Additional information was obtained from Bureau G. Board A is a non - profit corporation established in Year H. Board A was organized under Commonwealth of Pennsylvania's non- profit corporation laws so as to make Board A eligible for state and federal grants. Confidential Advice No. 94 -500 January 11, 1994 Page 2 According to Board A's by -laws, the organization was created to perform diagnostic feasibility studies, to evaluate the problems of Area I, to determine pollutant sources, to develop and implement a comprehensive watershed management plan, to implement best management practices in order to control pollutant loadings, to protect public health and welfare, and to promote environmental consciousness within Area I. Board A has no regulatory or enforcement powers. It functions as a source of technical assistance and believes that voluntary compliance is the most effective means of solving problems. On the rare occasion when voluntary compliance is not achieved, the Board will refer the violation to the proper regulatory agency. Board A was set up when Act J was passed. This Board then applied for federal money under Act K. The Board puts together a work plan which is approved by Agency E. A contract is then put in place with Department F. The Board, in its work plan, states what it will spend the money on, monitoring, reporting, education, etc., as approved by Agency E. Agency E gives the money to Department F and that department then, pursuant to the contract, gives it to Board A. Phase I, which Board A completed, consisted of a feasibility study and the establishment of a District Board of Directors with staff. Board A then applied for and received Phase II money from Agency E. This money is given to Board A by Agency E through the state, Department F. Phase II was recently completed in the end of December, 1993. The organization has been continued by donations from local municipalities and private concerned citizens, however, it is not a governmental organization of any type. Based upon the above, you request a confidential advisory from the State Ethics Commission. Discussion: The primary question to be answered is whether you are to be considered a "public official" as that term is defined in the State Ethics Law: 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 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 Comiriclential Advice No. 94 -500 Jamnry 11, 1994 Paw 3 any political subdivision thereof. 657.S. §402. In reviewing your question, the Commonwealth Court in its ruling in Phillips v. State Ethics Commission 79 Pa.Commw. 491, 471 A.2d 659 (1984), at page 661, directs the Commission to ctrue 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 aril opinions of this Commission, in light of the functions of Board A, it must be concluded that you are not a "public official" subject to the financial reporting and disclosure requirements of the State Ethics Act. Thus, because you do not fall within the classification of the tern "public official," you would not be subject to the financial reporting and disclosure requirements of the State Ethics Law. Accordingly, you would not be required to file the Statement of Fincial Interest for the years in which you served. Even though you are not a public official as that term is defined under the Ethics Law, you are subject to Section 3(b) and 3(c) of the Ethics Law which applies to everyone. 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. 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: In the position of a Member of Board A, you are not to be considered a public official as defined in the State Ethics Law. Accordingly, you 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 Confidential Advice No. 94 -504 January 11, 1994 Page 4 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). S incerely, Vincent J. Dopko Chief Counsel