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HomeMy WebLinkAbout95-590 LorenzenDouglas J. Lorenzen Supervisor Waste Management Services Pacific Environmental Services, Inc. 560 Herndon Parkway, Suite 200 Herndon, VA 22070 -5225 Re: Public Official; Cleanup Standards Scientific Advisory Board. Dear Mr. Lorenzen: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 1, 1995 95 -590 This responds to your FAX transmissions of July 5, and July 11, 1995, in which you requested advice from the State Ethics Commission. Issue: You ask whether in your capacity as a Member of the Cleanup Standards Scientific Advisory Board (CSSAB), you are to be considered a "public official" as that term is defined in the Public Official and Employee Ethics Law. 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. Senate Bill No. 1, known as the "Land Recycling and Environmental Remediation Standards Act" (Act) was recently signed into legislation. Section 105 of the Act creates CSSAB whose purpose will be to assist the Department of Environmental Resources (DER) in developing statewide health standards and procedures to be used in implementing the Act. You have enclosed a portion of that law, the full text of which is incorporated herein by reference. You seek an opinion from the Commission on whether you would be covered under the Ethics Law and, if so, what restrictions will be imposed upon you or your employer if you are appointed to CSSAB. As an employee of an environmental consulting firm, it is your intention to provide services to your clients pursuant to the Act. Discussion: Since you question whether you as a CSSAB Member are Lorenzen, Douglas J., 95 -590 August 1, 1995 Page 2 a public official, it is necessary to analyze the duties, functions and responsibilities of CSSAB in order to determine whether you 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 the CSSAB are set forth in the Land Recycling and Environmental Remediation Standards Act. The CSSAB is comprised of 13 members who will assist the DER Environmental Quality Board (EQB) ". . . in developing Statewide health standards, determining the appropriate statistically and scientifically valid procedures to be used, determining the appropriate risk factors and providing other technical and scientific advice as needed to implement the provisions of this act." The following support function is provided as to CSSAB: Support. -- The department shall provide the appropriate administrative and technical support needed by the board in order to accomplish its purpose, including support for surveys and technical studies the board may wish to undertake. The department shall publish a notice of meeting dates, times and locations and a list of topics to be discussed at any meeting no less that 14 days prior to the meeting, published in the same manner as required by the act of July 3, 1986 (P.L. 388, No. 84), known as the Sunshine Act. The question to be answered is whether your duties are encompassed within the term "public official" as defined in the Ethics Law and Regulations of the Commission. 65 P.S. §402. 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. Lorenzen, Douglas J., 95 -590 August 1, 1995 Page 3 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. Lorenzen, Douglas J., 95 -590 August 1, 1995 Page 4 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). We must review the question you present under these provisions of the statute and the regulations of the Commission in light of your duties and responsibilities as described above. Our inquiry necessarily focuses on the job 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, supra; Mummau v. Ranck. 531 Fed. Supp. 402 (E.D. Pa. Lorenzen, Douglas J., 95 -590 August 1, 1995 Page 5 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. Reviewing the definition of "public official" in the Ethics Law, the Regulations and opinions of this Commission, questions arise as to the scope of the powers of CSSAB because the authorizing legislation does not delineate whether CSSAB performs a purely advisory function or has powers to determine health standards and various procedures. If the power of CSSAB is limited to performing advisory functions only, you as a Board Member would not be a public official under the Ethics Law. Contrariwise, if CSSAB has the power to make determinations, you as a Board Member would be covered by the Ethics Law and subject to the restrictions therein. Assuming that the power of the CSSAB is limited to a purely advisory function, you would not be a "public official" as that term is defined under the Ethics Law and 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. Conclusion: You are not considered a "public official" in your capacity as a CSSAB Member assuming that the Board functions only in an advisory capacity. 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 Lorenzen, Douglas J., 95 -590 August 1, 1995 Page 6 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. ncerely, Vincent J. Dopko Chief Counsel