HomeMy WebLinkAbout00-546 FrillRobert H. Frill
221 Tulpehocken Avenue
West Reading, PA 19611
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
March 21, 2000
Re: Public Official; FIS; Member; Planning Commission; Advisory Body.
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us
00 -546
Dear Mr. Frill:
This responds to your letters received February 15 and February 18, 2000, by
which you requested advice from the State Ethics Commission.
Issue: Whether, as a Member of a Planning Commission which is purely advisory,
you are to be considered a "public official" subject to the Public Official and Employee
Ethics Act (the "Ethics Act ") and the Regulations of the State Ethics Commission, and
particularly, the requirements for filing Statements of Financial Interests.
Facts: You seek a determination as to whether, in your capacity as a Member of
a Planning Commission, you are a "public official" subject to the Ethics Act and the
Regulations of the State Ethics Commission. You specifically question whether you are
required to file Statements of Financial Interests pursuant to the Ethics Act.
You contend that if your Planning Commission is an advisory body, you are not
within the definition of "public official" under the Ethics Act and are therefore not
required to file Statements of Financial Interests.
You further contend that pursuant to the Pennsylvania Municipalities Planning
Code, 53 P.S. §10101 et seq., recommendations made by a planning agency to a
government body are advisory only. You state that your Council has, on occasion, told
your Planning Commission Members to "go jump in a lake."
Based upon the above, you ask whether you must file Statements of Financial
Interests.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11)
of the Ethics Act, 65 Pa.C.S. § §1107(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 Pa.C.S. §§1107(10), (1 1). An advisory only
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
Frill, 00 -546
March 21, 2000
Page 2
The Ethics Act defines the term "public official" as follows:
Section 1102. 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 this Commonwealth 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.
65 Pa.C.S. §1102 (Emphasis added).
The regulations of the State Ethics Commission similarly define the term "public
official" and set forth the following additional criteria that are used to determine whether
the advisory board exception applies:
(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.
Frill, 00 -546
March 21, 2000
Page 3
(V) The body makes independent decisions which
are effective without approval of the governing authority.
(VI) The body may adopt, amend and repeal resolu-
tions, 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).
51 Pa. Code §11.1.
In applying the definition of "public official" and the related regulatory criteria to
the question that you have posed, it is initially noted that planning commissions are
"planning agencies" as defined by the Pennsylvania Municipalities Planning Code, 53
P.S. §10107. The powers and duties of planning agencies are generally defined at 53
P.S. §10209.1. However, to some extent, the powers and duties of planning
commissions may vary. See, e.g., 53 P.S. § 10201.
Based upon your specific factual representation that the Planning Commission on
which you serve is a purely advisory body, the necessary conclusion is that in your
capacity as a Member of that Planning Commission, you are not to be considered a
"public official" as that term is defined in the Ethics Act. Thus, you are not subject to
the disclosure requirements of the Ethics Act, and you are not required to file Statements
of Financial Interests.
Frill, 00 -546
March 21, 2000
Page 4
The only provisions of the Ethics Act which apply to you are Sections 1 103(b)
and 1103(c) which apply to everyone. For your information, Sections 1103(b) and
1103(c) of the Ethics Act provide in part that no person shall offer to a public
official /public employee anything of monetary value and no public official /public
employee shall solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgement of the public official /public
employee would be influenced thereby. Reference is made to these provisions of the law
not to imply that there has been or will be any transgression thereof but merely to
provide a complete response to the question presented.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act; the applicability of any other statute, code, ordinance, regulation or other
code of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act.
Conclusion: Based upon the factual submission that you are a Member of a
Planning Commission which is a purely advisory body, you are not to be considered a
"public official" as that term is defined by the Public Official and Employee Ethics Act
( "Ethics Act "). Accordingly, in that capacity, you are not subject to the disclosure
requirements of the Ethics Act and you are not required to file Statements of Financial
Interests. Sections 1103(b) and 1103(c) of the Ethics Act apply to everyone. Lastly, the
propriety of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11), an 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, provided 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.
Sincerely,
- T 110
Vincent J. Ddigko
Chief Counsel