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HomeMy WebLinkAbout95-579 KopfSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 5, 1995 Robert Y. Kopf, Jr., Esquire Buchanan Ingersoll 600 Grant Street, 50th Floor Pittsburgh, PA 15219 -2887 Re: 95 -579 Conflict, Public Official /Employee, Historic and Architectural Review Board, Advisory Body. Dear Mr. Kopf: This responds to your letters of May 23, 1995 and June 12, 1995 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon the members of a historic and architectural review board which acts in an advisory capacity to borough council by making recommendations as to applications for certificates of appropriateness filed with that board. Facts: As Solicitor for the Borough of Edgeworth and with the authorization from a majority of Council, you seek an advisory opinion. The Borough of Edgeworth is currently considering the enactment of a historic preservation ordinance. One particular facet of this draft ordinance provides for the creation of an Historic and Architectural Review Board (Review Board). Under the ordinance, the Review Board would serve in an advisory capacity to Borough Council by recommending changes in the ordinance to Council. More importantly, the Review Board would review applications for Certificates of Appropriateness for compliance with the terms of the ordinance. After such review, the Review Board would make a recommendation to Council on what action should be taken on any application. The Review Board will serve in an advisory capacity only, having no adjudicatory powers in that it would not make the final decision on any matter. However, Borough Council will probably not take the Review Board's recommendations lightly. The ordinance as presently drafted allows Review Board members Kopf, Jr., Robert Y., Esquire, 95-579 July 5, 1995 Page 2 to contract their services to an applicant for a Certificate of Appropriateness. On such applications, the member would be disqualified from participation as a Review Board member. A specific example would be a Review Board member, who as an architect would be hired by a resident to design an addition to a home, obtain all needed local approvals and then appear before the Review Board and Council in support of an application. The question is whether these actions would be considered to be a violation of the Ethics Act, and more particularly, 65 P.S. §403 (a) relating to conflict of interest and §403 (g) relating to no representation before a governmental body for a period of one year after leaving such body. More specifically, you question whether the Review Board is a "governmental body" as defined under the Ethics Act. You assert that the foregoing would depend on whether the Review Board is an "agency performing a governmental function." While it appears to you that a body with advisory responsibilities is not truly performing a governmental function, the question is not clear. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family Kopf, Jr., Robert Y., Esquire, 95 -579 July 5, 1995 Page 3 is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. In addition, 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. It is necessary to analyze the duties, functions and responsibilities of the Review Board in order to determine whether the members are covered under the definition of public official and the Regulations of the Commission. Philips v. State Ethics Commission, 79 Pa. Commw. 491, 470 A. 2d 659 (1984). The powers or duties of Historic and Architectural Review Board are set forth in proposed ordinance. The Board would serve in an advisory capacity to borough council to recommend changes in the ordinance of council; review applications for certificates of appropriateness for compliance with terms of ordinance; and, after review, make recommendations to borough council as to what action to take on applications. The Review Board serves only in an advisory capacity and has no adjudicatory powers in that it does not make final decisions on any matter although borough council would probably not take the Review Board's recommendations lightly. The question to be answered is whether the duties of the Board are encompassed within the term "public official" as defined in the Ethics Law and Regulations of the Commission. 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 any political subdivision thereof. Kopf, Jr., Robert Y., Esquire, 95 -579 July 5, 1995 Page 4 65 P.S. §402. The regulations of the State Ethics Commission similarly define the term "public official" as above with the additional following criteria: (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 minimis economic impact on 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: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (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. Kopf, Jr., Robert Y., Esquire, 95 -579 July 5, 1995 Page 5 51 Pa. Code §11.1. (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. (ii) The term does not include judges 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 quasi- judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). Based upon the definition of "public official" and in light of the limited functions in such position, we conclude that the Review Board members are not to be considered "public officials" as that term is defined in the State Ethics Law. Thus, because the Review Board does not fall within the classification of the term "public official," the Board members would not be subject to Section 3(a) of the Ethics Law. However, the above is expressly conditioned upon the factual representation that the Review Board acts in purely an advisory capacity. Kopf, Jr., Robert Y., Esquire, 95 -579 July 5, 1995 Page 6 Sections 3(b) and 3(c) of the Ethics Law are applicable to everyone. 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: The members of the Historic and Architectural Review Board are not to be considered a public officials as defined in the State Ethics Law. Accordingly, the members would not be subject to the prohibitions or restrictions of Section 3(a) of Act 9 of 1989. However, 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 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 thirty (30) days of the date of this Advice pursuant to 51 Pa .Code 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Si cerely, Vincent +. Dopko Chief Counsel