HomeMy WebLinkAbout048-S ReeseIN RE: KATHERINE REESE
Respondent
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Dennis C. Harrington
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
Joseph W. Marshall, III
: File Docket: 92 -057 -P
: Date Decided: February 16, 1993
: Date Mailed: February 19, 1993
The State Ethics Commission received information regarding
possible violation(s) of Section 4 and /or Section 5 of the Public
Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, 65
P.S. S401 et seq. Written Notice was mailed to Respondent in
accordance with Section (7)(5) of the Ethics Law, as to which there
was no response. A Notice and Order to Show Cause was issued and
served upon Respondent. An Answer was filed and a hearing was
requested. A hearing was held on November 5, 1992. The record is
complete. This adjudication of the Commission is hereby issued,
which sets forth Findings of Fact, Discussion, Conclusions of Law
and Order.
This Adjudication is final and is a public document.
Reconsideration may be requested. A request for reconsideration,
however, does not affect the finality of this adjudication. A
reconsideration request must be received at this Commission within
fifteen days of issuance and must include a detailed explanation of
the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code SS2.38(b),(c).
Katherine Reese
February 19, 1993
Page 2
I. FINDINGS:
A. PLEADINGS:
1. Respondent Katherine Reese is an adult individual who has, at
all times relevant to these proceedings, been a Member of the
Brandywine Battlefield Park Commission ( "Commission ").
a. Respondent specifically held the aforesaid position in
1991.
b. Respondent resigned her position as a Member of the
Commission effective April 23, 1991.
2. Respondent did not file a Statement of Financial Interests for
calendar year 1990 with the State Ethics Commission and the
Governor's Office of Administration on or before May 1, 1991.
3. A Notice letter dated June 18, 1991, was served upon
Respondent by this Commission. The said Notice letter stated
in detail the specific allegations against Respondent
concerning the delinquency of Respondent's Statement of
Financial Interests for calendar year 1990 and the penalties
for failure to file or for filing a deficient Statement of
Financial Interests. The said Notice letter provided
Respondent an opportunity to avoid the institution of these
civil penalty proceedings by filing an accurate and complete
Statement of Financial Interests for calendar year 1990 within
fourteen (14) days of the date of the Notice letter.
a. Respondent admits receiving the aforesaid Notice letter
dated June 18, 1991.
b. Respondent assumed that since the said June 18, 1991
Notice letter arrived nearly two months after the
effective date of her resignation, it had been sent in
error.
c. Respondent states that she was never aware that the
filing requirement might apply to her notwithstanding her
resignation.
4. Respondent did not file a Statement of Financial Interests
with the State Ethics Commission and the Governor's Office of
Administration for calendar year 1990 within fourteen days of
the date of the said Notice letter.
5. By motion granted at the hearing in this matter on November 5,
1992, Respondent has amended her pleadings to additionally
assert as a defense that the Commissioners of the Brandywine
Katherine Reese
February 19, 1993
Page 3
Battlefield Park Commission do not fall under the requirements
of the Ethics Law.
B. TESTIMONY:
6. Katherine Ann Reese ( "Reese ") is an adult individual who
resides or maintains mailing addresses at 4 Frog Pond Road,
Chadds Ford, Pennsylvania, and P.O. Box 703, Mendehall,
Pennsylvania 19357.
a. Reese served as a Commissioner on the Brandywine
Battlefield Park Commission from approximately 1979
through her resignation on March 4, 1991, which
resignation was accepted by the Governor's Office on
April 23, 1991.
b. Reese's service on the Commission was voluntary and
uncompensated.
c. Reese has no objection to filing the Statement of
Financial Interests, and has previously done so.
d. Following her resignation from the Commission in 1991,
Reese received a Notice letter asking her to complete the
Statement of Financial Interests.
(1) Reese assumed the Notice letter did not apply to
her and disposed of it.
(2) Reese assumed that the Notice letter sought a
filing for the coming year.
(3) Reese assumed that the Notice letter was issued
erroneously without knowledge of her resignation.
(4) Reese believed that having resigned from the
Commission, she was not required to file the form
as requested.
(5) Reese ultimately telephoned the State Ethics
Commission regarding this matter by which time
proceedings had already been initiated against her.
e. On November 5, 1992, Reese filed a Statement of Financial
Interests for calendar year 1990.
f. Reese states that the Commission was an advisory
commission, with Harrisburg making all the financial
decisions.
Katherine Reese
February 19, 1993
Page 4
g.
(1)
To Reese's recollection, the Commission had no
power over money.
(a) Reese does not recall ever having voted on any
money measure.
(b) Reese personally never made recommendations as
to financial matters such as the budget.
(c) Although the Commission discussed the budget
in policy, the budget was presented from
Harrisburg and the Commission did not approve
it and exercised no power over it.
(2) The Commission recommended work to be done at the
Park.
(a) When tree work was needed, the Pennsylvania
Historical and Museum Commission ( "PHMC ")
hired a tree man and the Commission did not
have the final responsibility in selecting the
tree man.
No one ever attempted to bribe or influence Reese with
respect to anything that was being done by the Commission
in any way.
h. To Reese's knowledge, she never had any dealings with
anybody who had business interests with the Commission.
7. Edward F. Muller has served on the Commission since 1971.
a. When Muller first became a Member of the Commission, the
Commission had some control over donated monies known as
the "fish bowl fund."
(1) In the early 1980's, the fish bowl fund was
transferred to the historic preservation fund
administered by PHMC.
b. Since the early 1980's, the Commission has never handled
any funds.
c. Muller cannot recall a single instance where the
Commission has voted on any expenditure since the fish
bowl fund was transferred to the historic preservation
fund.
(1) The Commission recommends work to be done, but PHMC
makes all the decisions with respect to Park
Katherine Reese
February 19, 1993
Page 5
expenditures, lets all contracts, and pays for all
work performed without any involvement by the
Commission.
(2) None of these decisions are made by the Commission.
d. The Commission exercises no control over its own funding.
(1) In the 1970's and early 1980's, PHMC's budget
contained a line item appropriation for Brandywine
Battlefield Park.
(a) The budget was prepared in Harrisburg with
little or no input from the Commission except
in an advisory capacity.
(2) In the middle 1980's, the line item appropriation
for the Park disappeared from PHMC's budget, after
which the Park's funding consisted of whatever
funds PHMC would allocate to the Park from PHMC's
general appropriation funds.
e. PHMC fixes admission fees at the Park, which fees go into
general state funds.
f. The Commission plays no role in hiring employees to work
at the Park.
g.
(1) The Site Administrator is an employee of PHMC.
(2) All other employees at the Park are'hired by PHMC,
except for employees of the Brandywine Battlefield
Park Associates Group. (gee, Finding 7g below).
(3) The Commission is informed of PHMC hirings after
they occur.
The Brandywine Battlefield Park Associates Group is a
non - profit corporation funded by membership dues and
fund - raising events.
(1) On or about 1979 or 1980, the Commission made the
decision to form the said non - profit corporation,
with the approval of PHMC, and directed Muller to
prepare the necessary paperwork.
(2) The Brandywine Battlefield Park Associates Group
hires individuals to work at a store in the Park
and /or to teach summer camps.
Katherine Reese
February 19, 1993
Page 6
(3)
The Brandywine Battlefield Park Associates Group
sponsors programs at the Park.
h. The Commission only functions in an advisory capacity to
communicate to PHMC the feeling of the community with
respect to the Park.
(1) The Commission has only four meetings a year, to
which the Site Administrator brings an agenda of
items for which he needs assistance or advice.
i. Muller states that on or about 1983, the Commission
entered into an agreement delegating to PHMC all of the
Commission's major duties under the original enabling
act, thereby reducing the Commission to an advisory
commission only.
(1) Muller states that on or about 1983, there was a
movement in the Legislature to do away with the
Commission, which movement the Commission opposed.
(2) At this time, Muller had been Commission Chairman
for four to five years.
(3) Muller met with the administrator /director of PHMC
and agreed on a set of "principles."
(4) Thereafter, Muller drafted the agreement delegating
to PHMC duties which PHMC had been performing
anyway, being the major duties given to the
Commission under the original enabling act.
Following review by various state departments, the
agreement was executed.
(6) The agreement was a one -year agreement with
automatic renewal absent notice of cancellation to
either side.
(7) The said agreement has never been cancelled.
The Commission does not exercise custody, control,
management and /or supervision of the Park. (37 Pa.C.S.
5703(c)).
(1) The above functions are performed by the Site
Administrator through PHMC.
(2) The Site Administrator seeks advice from the
Commission.
Katherine Reese
February 19, 1993
Page 7
k. With regard to budget preparation duties (37 Pa.C.S.
§703(c)(2),(3);(d)), the Commission does not exercise any
control over its budget.
(a) Muller states that even if the Commission was
asked to approve the plan, it has been a "pro
forma rubber stamp operation."
To Muller's knowledge, the Commission has not
entered into agreements with PHMC specifying the
funding to be made available to the Commission.
(37 P.S. S703(d)).
1. Although the elected officers of the Commission are to
include a treasurer (37 Pa.C.S. §703(b)), the Commission
has no treasurer.
(6)
To Muller's knowledge, the annual plan is prepared
almost entirely by the Site Administrator, an
employee of PHMC.
The plan is presented to and reviewed with the
Commissioners item by item.
Input is sought from the Commission.
The budget is finally adopted by PHMC.
Muller does not believe that in the last several
years the Commission has been asked to approve the
plan.
m. Muller admits he did not file the Statement of Financial
Interests for calendar year 1990.
(1) Muller has filed Statements of Financial Interests
in the past.
(2) Muller feels the form is intrusive and does not
believe the filing is required.
(3) Muller filed a Statement of Financial Interests for
calendar year 1990 with his response to the Order
to Show Cause.
n. Muller states that he has never represented anybody that
had any business to do with the Parkin any way.
o. Muller states that nobody has ever tried to influence him
in the performance of Commission duties.
Katherine Reese
February 19, 1993
Page 8
C. EXHIBITS:
8. Based upon a diligent and thorough examination of the official
records of the State Ethics Commission, no Statement of
Financial Interests for calendar year 1990 was received from
Katherine Reese for service as a Member of the Brandywine
Battlefield Park Commission, on or before the close of office
hours on May 1, 1991, nor was any Statement of Financial
Interests for calendar year 1990 subsequently received from
Katherine Reese bearing an official United States postmark of
on or before May 1, 1991. (A Statement of Financial Interests
dated October 5, 1992, for calendar year 1990 was received
from Katherine Reese on November 5, 1992. (See Finding 6e)).
9. Based upon a diligent and thorough examination of the official
records of the State Ethics Commission, no Statement of
Financial Interests for calendar year 1990 was received from
Edward F. Muller, Jr., for service as a Member of the
Brandywine Battlefield Park Commission, on or before the close
of office hours on May 1, 1991, nor was any Statement of
Financial Interests for calendar year 1990 subsequently
received from Edward F. Muller, Jr., bearing an official
United States postmark of on or before May 1, 1991.
10. A Statement of Financial Interests dated May 4, 1992, for
calendar year 1990 was received from Edward F. Muller, Jr., on
May 5, 1992.
11. A review of the minutes of the Brandywine Battlefield Park
Commission's meetings of April 16, 1990, June 18, 1990,
September 10, 1990, November 19, 1990, June 17, 1991,
September 9, 1991, and December 2, 1991, reflects no
substantive determinations as to fiscal expenditures, capital
purchases, Park maintenance, personnel, or other non - advisory
decision making by the Commission.
12. A review of the minutes of the Brandywine Battlefield Park
Commission's regular quarterly meeting of March 9, 1992,
reflects no substantive determinations as to fiscal
expenditures, capital purchases, Park maintenance, or
personnel by the Commission.
a. The Commission voted to approve a draft annual plan for
1992 -1993 presented by the Administrator.
13. A review of the minutes of the Brandywine
Commission's regular quarterly meeting of
reflects no substantive determinations
expenditures, capital purchases, Park
personnel by the Commission.
Battlefield Park
March 11, 1991,
as to fiscal
maintenance, or
Katherine Reese
February 19, 1993
Page 9
a. The minutes do reflect the prior approval by the
"Commissioners" in a telephone survey of an admission fee
increase, without indicating whether the Commissioners
approving said increase were of PHMC or the Brandywine
Battlefield Park Commission.
b. The minutes reflect that the Site Administrator presented
his draft of the annual plan which was approved by the
Commissioners with two revisions.
(1) One revision pertained to the Commission, and
inserted the words "subject to the consent of the
Brandywine Battlefield Park Commission" in Part IVa
of the annual plan, but the minutes do not reflect
the substantive nature of that portion of the plan.
14. A letter dated February 3, 1983, from Barbara S. Drake, Deputy
General Counsel of the Commonwealth of Pennsylvania, Office of
General Counsel to Muller addressed questions raised by Muller
with regard to the delegation of authority by the Brandywine
Battlefield Park Commission to PHMC.
a. The letter opined that generally, a delegation of
authority by the Commission to PHMC would be appropriate
under general principles applicable to governmental
entities and in light of the statutory authority granted
to PHMC.
b. The letter cautioned, ". . . however, the delegation of
authority cannot include a delegation of the statutory
responsibility of the Brandywine Battlefield Commission
and such delegation will not exonerate your Commission
from responsibility for any errors or omissions which
might occur."
c. The letter opined that the delegations in the proposed
agreement comport with legal requirements for such a
delegation of authority by a public body.
15. The agreement entered into by PHMC and the Commission
delegates certain management functions to PHMC as follows:
a. PHMC is delegated the management of ,administrative
matters relating to personnel; the representation of the
interests of the Commission in all union negotiations for
Park employees; and the handling of all formal
proceedings involving employee grievances;
b. PHMC is in charge of purchasing materials, supplies and
equipment;
Katherine Reese
February 19, 1993
Page 10
c. PHMC is responsible for selecting a historic Site
Administrator, in consultation with the Commission, but
the selection of that individual is subject to final
approval by the Commission;
d. The Site Administrator is directly responsible to and
under the supervision of the Commission and is
responsible for implementing the decisions and
instructions of the Commission in all matters relating to
the Commission's statutory responsibilities for operation
and management;
e. Any decision or instruction of the Commission involving
Park policy which is believed by the Site Administrator
to be inadvisable or contrary to state law, policy, and
procedure, is submitted to PHMC for an advisory opinion,
but the final decision for any such matter is made by the
Commission with the Commission assuming full
responsibility;
f. No major physical changes are to be made to the grounds
or buildings without the approval of both PHMC and the
Commission;
g.
The Commission is to prepare an annual plan for Park
events and uses, which plan is to be within any PHMC
guidelines as far as is practical and is to be submitted
to PHMC for review and suggested revisions, but no
revision is to be adopted without the vote of two - thirds
of the Brandywine Battlefield Park Commission Members
present;
h. The Commission may request assistance in contracting
matters from legal counsel and PHMC;
i. The Commission and PHMC are to prepare all plans for the
future physical development of the Park, with the
Commission being responsible for implementing such plans
with the assistance of PHMC if requested, and with all
contracts being required to be approved by PHMC;
The Commission, in consultation with PHMC, is to prepare
an annual budget, which, after approval, becomes the
basis for all expenditures, and with the Commission
establishing priorities with respect to expenditures for
fixed assets, repair of major facilities and capital fund
expenditures; and
k. PHMC is to use a portion of the funds in the historical
preservation fund for the Park as set forth more
j
Katherine Reese
February 19, 1993
Page 11
specifically in the agreement.
16. The agreement is automatically renewed each year unless either
party notifies the other of its intention to treat the
agreement as terminated on its next succeeding anniversary
date.
II. DISCUSSION:
Respondent has been a Member of the Brandywine Battlefield
Park Commission at all times relevant to these proceedings.
Respondent specifically held the aforesaid position in 1991.
Factually, it is clear that Respondent did not file a
Statement of Financial Interests for calendar year 1990 with the
State Ethics Commission and the Governor's Office of
Administration, on or before May 1, 1991.
Section 9(f) of the Ethics Law provides as follows:
(f) In addition to any other civil remedy or
criminal penalty provided for in this act, the commission
may, after notice has been served in accordance with
section 7(5) and upon a majority vote of its members,
levy a civil penalty upon any person subject to this act
who fails to file a statement of financial interests in
a timely manner or who files a deficient statement of
financial interests, at a rate of not more than $25 for
each day such statement remains delinquent or deficient.
The maximum penalty payable under this paragraph is $250.
65 P.S. §409(f).
It is also clear in this case that the prerequisite service of
a Notice letter in accordance with Section 7(5) was satisfied.
Respondent admits receiving the said Notice letter, but states that
she thought it was sent in error given that she had resigned from
the Commission and she assumed that the Notice was pertaining to
the upcoming year.
The fundamental issue in this case, however, is whether
Respondent as a Member of the Brandywine Battlefield Park
Commission would be a "public official" as that term is defined
under the Public Official and Employee Ethics Law ( "Ethics Law "),
65 P.S. §401, et seq., and the Regulations of the Commission. The
statutory definition is as follows:
"Public official" Any person elected by the
public or elected or appointed by a
governmental body, or an appointed official in
Katherine Reese
February 19, 1993
Page 12
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 "public official" as above and also provide as
follows:
Section 1.1 Definitions
Public officials - --
An elected or appointed official in the
executive, legislative or judicial branch of
the government of the Commonwealth or its
political subdivisions. The terms does not
include a member of an advisory board who has
no authority to spend public funds other than
reimbursement for personal expenses or to
otherwise exercise the power of the State or a
political subdivision thereof.
(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 effect on the interest of a person.
(B) The body will be deemed to have the
authority to otherwise . exercise the power of
the State or a political subdivision if one of
the following exists:
(I) The body makes binding decisions or
orders adjudicating substantive issues which
Katherine Reese
February 19, 1993
Page 13
51 Pa. Code S1.1.
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.
We must review the status of Members of the Brandywine
Battlefield Park Commission 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 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,
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.
Before addressing the pertinent statutory provisions, however,
we must initially reject the argument that a governmental body can
Katherine Reese
February 19, 1993
Page 14
free itself from the power to perform its statutory duties merely
by delegating those duties to some other entity. Even if we assume
that the delegation of the duties themselves is properly
accomplished, the power to so delegate and the power to terminate
such a delegation are inherently part of the delegating body's
ultimate power to exercise its authorities and perform its duties
itself. Indeed, the letter submitted as Respondent's Exhibit 2,
dated February 3, 1983 from Deputy General Counsel Barbara S. Drake
of the Office of General Counsel, specifically cautioned that the
delegation of authority by the Brandywine Battlefield Park
Commission to PHMC ". . . cannot include a delegation of the
statutory responsibility of the Brandywine Battlefield Commission
and such delegation will not exonerate [the] Commission from
responsibility for any errors or omissions which might occur."
Furthermore, a review of the proffered agreement itself would
not, in our view, leave the Commission with a purely advisory role.
To the contrary, the Commission retained the ultimate decision
making power on many matters as set forth more fully in Finding 15
above.
In any event, our determination of the status of the Members
of the Brandywine Battlefield Park Commission must disregard the
agreement. Such an agreement may neither diminish nor enlarge upon
the statutory duties and powers of the Commission.
The only relevant reference, therefore, is the statute which
sets forth the powers and duties of the Brandywine Battlefield Park
Commission, specifically 37 Pa.C.S. §703. The language of the
statute, however, is ambiguous. 37 Pa.C.S. §703(c) on the one hand
appears to preserve the power of the Commission, notwithstanding
certain powers given to PHMC. On the other hand, the enumerated
duties of the Commission may well be deemed advisory. Similarly,
37 Pa.C.S. §703(d) involving the funding of the Park is vague in
its requirement that the Commission and PHMC "agree" on funding.
Thus, we are presented with a very difficult situation in this
case. We find both Reese and Muller to have been very credible,
and we do not doubt their sincere belief that they would fit within
the exclusionary language of the definition of "public official" as
set forth within the Ethics Law. But we may not simply rely upon
their perceptions of their duties, or even upon the specific duties
actually performed by the Commission. Rather, we must rely upon
the statutory power given to the Commission. Unfortunately, the
statutory provisions are ambiguous. In this case, we find that for
purposes of the Ethics Law, the statutory powers and duties of the
Brandywine Battlefield Park Commission fail to conclusively bring
Respondent within the definition of "public official" set forth in
the Ethics Law.
Katherine Reese
February 19, 1993
Page 15
We therefore conclude that Respondent, as a of the
Brandywine Battlefield Park Commission, is not a "public official"
as defined in the Ethics Law, and therefore is not subject to the
requirement to file Statements of Financial Interests. We would
caution that our decision in this matter is based upon the unique
circumstances surrounding the Brandywine Battlefield Park
Commission, and would have limited, if any, precedential effect.
In light of our above conclusion, no civil penalty may be
levied in this case.
III. CONCLUSIONS OF LAW:
1. Respondent Katherine Reese has at all times relevant to these
proceedings been a Member of the Brandywine Battlefield Park
Commission.
2. As a Member of the Brandywine Battlefield Park Commission
Respondent is not a "public official" as defined in the Ethics
Law, and therefore is not subject to the requirement to file
Statements of Financial Interests.
3. No civil penalty may be levied in this case.
IN RE: KATHERINE REESE
Respondent
. File Docket: 92 -057 -P
: Date Decided: February 16, 1993
: Date Mailed: February 19, 1993
ORDER NO. 048 -S
1. Respondent Katherine Reese, as a Member of the Brandywine
Battlefield Park Commission, is not a "public official" as
defined in the Ethics Law, 65 P.S. S401, et sec., and
therefore is not subject to the requirement to file a
Statement of Financial Interests.
2. No civil penalty may be levied against Respondent in this
matter.
BY THE COMMISSION,
James M. Howley, :::it--
Vice Chair Daneen E. Reese and Commissioner Joseph W. Marshall,
III, dissent in that they would find that the Members of the
Brandywine Battlefield Park Commission are public officials
required to file Statements of Financial Interests.
Commissioner Austin M. Lee did not participate in the final
decision of this case because he presided at the hearing as one
Commissioner and recused himself.