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HomeMy WebLinkAbout96-558 GadaniLou Gadani Chairman Canonsburg Recreation and Park Board c/o Representative Anthony Colaizzo 68 East Pike Street Room 206 Canonsburg, PA 15317 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 24, 1996 96 -558 Re: Member, Recreation and Park Board; Borough; Public Official; FIS Dear Mr. Gadani: This responds to your letters of March 11, 1996, April 29, 1996, May 7, 1996, and May 10, 1996 in which you requested advice from the State Ethics Commission. Issue: Whether Members of the Recreation and Park Board of the Borough of Canonsburg are "public officials" subject to the Public Official and Employee Ethics Law, and are therefore required to file Statements of Financial Interests. Facts: As Chairman of the Recreation and Park Board of the Borough of Canonsburg ( "Board "), you request an advisory for yourself and on behalf of the other Board Members as to whether Members of the Board are within the definition of "public official" as set forth in the Ethics Law and are therefore subject to the Ethics Law and specifically the requirement to file Statements of Financial Interests. The Board consists of 7 Members who are appointed by the Borough of Canonsburg for five -year terms. You state that the Board acts "as an arm of the Borough" in coordinating Park activities. The Board Members make recommendations for the refurbishing and betterment of the local park, which you state has deteriorated in recent years due to the continued decline of federal and state funding and a shrinking tax base. The Board has a checking account for public donations to the park effort but does not receive any tax dollars or grant proceeds. All grant proceeds such as the Keystone Grant are made out to the Borough of Canonsburg for disbursement under the Borough's checking account under acceptable accounting standards. All tax dollars budgeted for park repairs or expense are also paid through the Borough of Canonsburg and you state that the Board has no official vote or control over the spending of these monies. Gadani, 96 -558 May 24, 1996 Page 2 You have submitted a copy of Ordinance No. 1155 of the Borough of Canonsburg, which created the Board. The Ordinance was enacted into law on September 10, 1990. According to the Ordinance, the Board has the power to provide and conduct recreational and cultural activities and to maintain public recreation areas, facilities, and centers subject to all responsibilities of the "Recreation Enabling Legislation." See, Ordinance No. 1155, at §2; 53 P.S. §47701 gii seq. The Board maintains, operates, and supervises the public parks, play fields, and all outdoor and indoor recreation areas and facilities owned or controlled by the Borough except for the municipal swimming pool. J at §4. The Board has the authority to accept grants, gifts, bequests, or donations of services, equipment, real estate, or money to be used as specified by the donor or by the terms of acceptance. As for contracting, the Ordinance states, "The Recreation and Park Board shall have no authority to enter into any contract or incur any obligation binding upon the Borough of Canonsburg, other than current obligations or contracts to be fully executed within the then current fiscal year, and all within the budget appropriations made by the governing body of the Borough of Canonsburg." Id at §5. The funds that are appropriated by the Borough and budgeted to the Board are disbursed by the fiscal disbursing officer of the Borough, upon vouchers issued by the Board and within the budget appropriations made. Likewise, funds received by the Board from other sources are deposited by the fiscal disbursing officer to the credit and for the use of the Board and are disbursed as the budget funds are disbursed except as in accordance with the terms of the acceptance of those funds. j_c. at §6. Finally, the Ordinance vests in the Board all powers provided by statute of the Commonwealth of Pennsylvania or by Ordinances of the Borough relating to the development and operation of recreation systems, public parks, and playgrounds. Iii. at §8. As for the enabling legislation, such provides, inter alia, as follows: §47708. Creation of recreation board The authority to supervise and maintain recreation places may be vested in any existing body or board, including the borough council, or in a recreation board, as the borough council shall determine. The council of any such borough may equip, operate and maintain the recreation places, as authorized by this article, and may, for the purpose of carrying out the provisions of this article, employ play leaders, recreation directors, supervisors, superintendents, or any other officers of employes, as it may deem proper. 53 P.S. §47708. §47709. Composition of board (a) If the borough council shall determine that the power to equip, operate, and maintain recreation places, shall be exercised by a recreation board, it may establish in said borough such recreation board, which shall possess all the powers. and be subject to all the responsibilities. of the respective authorities under this article. .. . 53 P.S. §47709(a) (Emphasis added). Gadani, 96 -558 May 24, 1996 Page 3 Discussion: Since you question whether Members of the Recreation and Park Board of the Borough of Canonsburg are public officials required to file Statements of Financial Interests under the Ethics Law, it is necessary to analyze the duties, functions and responsibilities of the Board Members in order to determine whether they 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 Ethics Law defines "public official" as follows: 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. The regulations of the State Ethics Commission similarly define the term and provide the following additional criteria for applying the advisory board exception: (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. Gadani, 96 -558 May 24, 1996 Page 4 51 Pa. Code § 1 1.1. (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. (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). The status of the Members of the Recreation and Park Board of the Borough of Canonsburg must be reviewed under these provisions of the statute and the Regulations of the Commission in light of their duties and responsibilities. Our inquiry necessarily focuses on the office 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 Gadani, 96 -558 May 24, 1996 Page 5 Ethics Commission, 79 Pa.Commw. 491, 470 A.2d 659 (1984); Mummau v. Ranck, 531 Fed.Supp. 402 (E.D. Pa. 1982). The Commonwealth Court in its ruling in Phillips, s u p ra, 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. Members of the Board are appointed by a governmental body, the Borough of Canonsburg, and so they must be deemed "public officials" unless the advisory board exception applies. The criteria for applying the advisory board exception are that there must be no authority to expend public funds other than reimbursing personal expenses, and that there must be no authority to otherwise exercise the power of the state or political subdivision. It is an objective standard which must be applied. The Commission does not rely upon the Members' perceptions of their duties or even the specific duties performed, but rather, the authority provided to the Board by law. See, e.q., Muller, Order No. 047 -S. As a matter of law, the Recreation and Park Board of the Borough of Canonsburg does have the power to spend public funds beyond reimbursing personal expenses. The Ordinance states, "The Recreation and Park Board shall have no authority to enter into any contract or incur any obligation binding upon the Borough of Canonsburg, other than current obligations or contracts to be fully executed within the then current fiscal year, and all within the budget appropriations made by the governing body of the Borough of Canonsburg." Ordinance No. 1 155 at §5 (Emphasis added). Thus, the Board does have the authority to enter into contracts that will be fully executed within a fiscal year. Given that the Board has the authority to spend public funds beyond the reimbursement of personal expenses, the advisory board exception does not apply in this case. Based upon the facts which have been submitted, and based upon a review of the pertinent statutory provisions and Ordinance, Members of the Recreation and Park Board of the Borough of Canonsburg are "public officials" as defined in the Ethics Law, and therefore are subject to the requirement to file Statements of Financial Interests. Conclusion: Members of the Recreation and Park Board of the Borough of Canonsburg are "public officials" as defined in the Ethics Law, 65 P.S. §401, DI seq. Accordingly, the Board Members must file Statements of Financial Interests for each year the position is held and for the year following termination of service. If the Board Members have not already done so, Statements of Financial Interests must be filed within 30 days of this Advice. 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. Gadani, 96 -558 May 24, 1996 Page 6 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 §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). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. cerely, Vincent J. opko Chief Counsel