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HomeMy WebLinkAbout94-552 SloaneSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 14, 1994 Susan Sloane Manager Pennsylvania Export Partnership (PEP) Program Office of International Trade 464 Forum Building Harrisburg, PA 17120 94 -552 Re: Public Employee /Official, FIS, Pennsylvania Export Partnership (PEP) Advisory Board. Dear Ms. Sloane: This responds to your letter of March 30, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether Members of the Pennsylvania Export Partnership Advisory Board are to be considered "public employees" or "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: The Pennsylvania Export Partnership (PEP) Act established the PEP Advisory Board (Board) and provided for its powers and duties. The Board is to exist and function for the public purpose of promoting the sale of Commonwealth- manufactured goods and services in foreign markets. The Membership of the Board consists of 13 members as follows: (1) The Secretary of Agriculture. (2) The Secretary of Commerce. (3) One member appointed by the President pro tempore of the Senate. (4) One member appointed by the Minority Leader of the Senate. Sloane, Susan, 94 -552 April 14, 1994 Page 2 (5) One member appointed by the Speaker of the House of Representatives. (6) One member appointed by the Minority Leader of the House of Representatives. (7) Two members appointed by the Governor who belong to trade development organizations active in this Commonwealth. (8) One member appointed by the Governor who is an employee of the Federal International Trade Administration. (9) Four members appointed by the Governor who have business experience exporting goods. The Secretary of Commerce serves, as the chairperson of the board. The Secretary may designate a deputy secretary of the department to serve as chairperson in his absence. Each member serves at the pleasure of his respective appointing authority. The members of the board are not entitled to any compensation for their services as members but are entitled to reimbursement for all reasonable and necessary expenses in accordance with the rules of the executive board. A member of the board who is a member of the Governor's Cabinet or General Assembly may designate another individual to attend board meetings on the member's behalf. No other member of the board may designate another person to attend board meetings on his behalf. The purpose of the board is to advise the Governor and the Secretaries of the Executive Agencies on the best means for Commonwealth agencies to promote the sale of Commonwealth- manufactured goods and services in foreign markets by; (1) Coordinating the efforts of the various Commonwealth agencies, municipal governments, local trade development organizations, academic institutions and Commonwealth service and manufacturing businesses so as to provide a more efficient allocation of their limited resources and so as to make optimum use of the information, services and resources of the Federal Government which will aid in the promotion of the sale of Commonwealth- manufactured goods and services in foreign markets. (2) Coordinating the presentation of trade shows and the availability of export counseling services and other technical assistance offered by any of the Commonwealth agencies, municipal governments, businesses, local trade development, organizations and academic institutions so . as to provide maximum benefit to Commonwealth businesses. (3) Increasing international trade development awareness in this Commonwealth. Sloane, Susan, 94 -552 April 14, 1994 Page 3 The board is granted and has and may exercise all powers necessary or appropriate to carry out and effectuate the purposes of this act including the following: (1) To advise the department of the availability and advisability of consultants and others who might prepare, sell or provide reports, marketing materials, strategic studies or other services which will assist the department in carrying out its efforts in promoting exports. (2) To hold meetings for the purpose of gathering information in furtherance of carrying out any of its responsibilities. (3) To issue reports, advisory letters, marketing material or other information to any party it deems appropriate in furtherance of carrying out its responsibilities. (4) To obtain such books, reports, computer information, strategic studies and other material necessary to monitor the effectiveness of State and local programs to promote or assist in international trade or make recommendations for continued improvement of these programs and to make the same available with or without charge, to any party it deems appropriate in furtherance of carrying out any of its responsibilities. To monitor the progress of local trade development agencies funded by the department to provide . export assistance to businesses including regional or local capacity building as it relates to export development or both. ( Based upon the above, you request an advisory from the State Ethics Commission as to whether the Board Members are required to file Statements of Financial Interests. Discussion: It is noted that, for the plYrpose of this response, the reliance is upon the statute which created the Board. The primary question to be answered is whether Board Members are to be considered "public officials" 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 Sloane, Susan, 94 -552 April 14, 1994 Page 4 65 P.S. §402 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 any political subdivision thereof. It is necessary to analyze the duties, functions and responsibilities of the Board in order to determine whether the Members covered under the definition of public official. The powers or duties of the Board are set forth in the factual recitation above. In reviewing this question, the Commonwealth Court in its ruling in Phillips v. State Ethics Commission, 79 Pa.Commw. 491, 470 A.2d 659 (1984), at page 661, directs the Commission 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 the structure and limited function of the Board as per the statute which was submitted, it must be concluded that Members of the Board are not "public officials" as defined by the Ethics Law. Thus, because the Board Members 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. Since the Board Members are not public officials as that term is defined under the Ethics Law, the proposed activity would not be restricted by the Ethics Law subject to the qualification that Section 3(b) and 3(c) apply 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 Sloane, Susan, 94 -552 April 14, 1994 Page 5 than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As Members of the Pennsylvania Export Partnership Advisory Board, the Members are not to be considered public officials as defined in the State Ethics Law. Accordingly, they 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. This letter is a public record and will be made available as such. 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). cc: Robert Parsons Office of Administration Personnel 517 Finance Building Harrisburg, PA 17120 erely, Vincent ¶ Dopko Chief Counsel