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Home My WebLink About96-564 BerkobenDear Mr. Berkoben: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 6, 1996 Robert Berkoben Personnel Officer Office of Administration 222 Finance Building Harrisburg, PA 17108 Re: Members; Juvenile Advisory Committee; Public Official; FIS 96 -564 This responds to your letter of May 8, 1996, in which you requested advice from the State Ethics Commission. Issue: Whether Members of the Juvenile Advisory Committee are considered "public officials" as that term is defined in the Public Official and Employee Ethics Law and are therefore required to file Statements of Financial Interests. Facts: You ask whether Members of the Juvenile Advisory Committee ( "Committee ") fall within the definition of "public official" as set forth in the Ethics Law and the regulations of this Commission. You have submitted a copy of Act No. 1978 -274 which established the Committee as within the Pennsylvania Commission on Crime and Delinquency. Act No. 1978 -274, Section 6(a). The powers and duties of the Juvenile Advisory Committee are as follows: Section 7. Powers and duties of the Juvenile Advisory Committee. The Juvenile Advisory Committee shall have the power, and its duty shall be: (1) Serve in an advisory capacity to the commission through the committee's participation in the development of that part of the commission's comprehensive plan relating to juvenile justice and delinquency prevention. (2) Those functions related to the direct approval and disbursement of financial assistance shall be in an advisory capacity only, but the advisory committee shall have the Berkoben /Juvenile Advisory Committee, 96 -564 June 6, 1996 Page 2 opportunity to review and comment on such applications within 30 days after receipt of the application from the commission. (3) To advise the commission on the definition, development and correlation of programs and projects and the establishment of priorities for juvenile justice and delinquency prevention. (4) To develop standards, methods and procedures for evaluating and monitoring services for delinquent and dependent children. (5) Upon request provide whatever assistance and advice to the commission on any other matters relating to juvenile justice and delinquency prevention. (6) Staff support shall be made available to the Juvenile Advisory Committee by the executive director in order to adequately perform the duties provided for in this section. (7) Submit to the Governor and the General Assembly such reports as may be required by federal law. Act No. 1978 -274, §7. Members of the Juvenile Advisory Committee are entitled to compensation and expenses as follows: (i) Compensation and expenses. — Members who are not Commonwealth officers or state, county, or municipal employees shall be paid $75 a day for attendance at any official meeting. Reasonable expenses incurred by members shall be allowed and paid upon the presentation of itemized vouchers therefor. Act No. 1978 -274, §2(i), made applicable to Members of Juvenile Advisory Committee by §6(c). Discussion: The question to be answered is whether Members of the Juvenile Advisory Committee are within the definition of "public official" as set forth in the 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 Berkoben /Juvenile Advisory Committee, 96 -564 June 6, 1996 Page 3 65 P.S. §402. exercise the power of the State or any political subdivision thereof. The regulations of the State Ethics Commission similarly define the term "public official" as above with the following additional 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: (1) 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. (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. Berkoben /Juvenile Advisory Committee, 96 -564 June 6, 1996 Page 4 51 Pa. Code §11.1. (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). An analysis of your inquiry necessarily focuses on the position 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. 1982). The Commonwealth Court in its ruling in Phillips, supra, at page 661, has directed that coverage under the Ethics Act be construed broadly, rather than narrowly, and that exclusions from the Ethics Act be narrowly construed. A review of the powers and duties of the Juvenile Advisory Committee reveals that it is a purely advisory board. Furthermore, it does not have the power to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the state or any political subdivision thereof. Therefore, the Juvenile Advisory Committee Members clearly fall within the exception to the definition of "public official" and are therefore not to be considered "public officials." Members of the Juvenile Advisory Committee, as such, are not required to file Statements of Financial Interests pursuant to the Ethics Law. Conclusion: Members of the Juvenile Advisory Committee are not "public officials" as that term is defined in the Ethics Law, and therefore, as such, they are not required to file Statements of Financial Interests. Berkoben /Juvenile Advisory Committee, 96 -564 June 6, 1996 Page 5 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 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 o J. w p k Chief Counsel \C'eP