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HomeMy WebLinkAbout92-004 AbrahamsenSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Rluger DATE DECIDED: June 24, 1992 DATE MAILED: June 29, 1992 Thomas C. Abrahamsen, Esquire 92 -004 LaBrum and Doak One Montgomery Plaza Suite 505 Norristown, PA 19401 Re: Member, Chester County Agricultural Land Preservation Board, Public Official, FIS, Appeal of Advice. Dear Mr. Abrahamsen: This Opinion is issued pursuant to the appeal of the Advice of Counsel, No. 92 -565 issued on April 17, 1992. I. ISSUE: Whether under the Public Official and Employee Ethics Law a County Agricultural Land Preservation Board Member is to be considered a "public official" required to file a Statement of Financial Interests. II. FACTUAL BASIS FOR DETERMINATION: The issue which you have presented was originally processed as a request for an advice of counsel and as a result Advice of Counsel No. 92 -565 was issued on April 17, 1992. That Advice concluded that the Chester County Agricultural Land Preservation Board Members are "public officials" subject to the provisions of the Ethics Law who must file Statements of Financial Interests for each year in which a member holds the position and for the year following termination of service. On April 27, 1992, this Commission received your letter of April 22, 1992, wherein you appealed the above Advice. By letter dated May 27, 1992, you were notified of the date, time and location of the public meeting. Thomas C. Abrahamsen, Esquire June 29, 1992 Page 2 The appeal of advice does not delineate the nature of objection to the Advice other than to indicate the exercise of your right to appeal. However, the following was supplied in the original letter of request. The Chester County Agricultural Land Preservation Board (CCALPB) consists of nine members appointed by the Chester County Commissioners who serve on a voluntary basis without compensation for their service. Applications from citizens of the Commonwealth who offer to sell agricultural conservation easements to the Commonwealth or to Chester County are considered by the CCALPB. Applications are evaluated pursuant to a point system designated by the Act and the Regulations. The CCALPB selects for appraisal certain parcels of property that are offered for purchase. After the appraisals are received, the CCALPB recommends to the State Agricultural Preservation Board (State Board) that the Commonwealth purchase, or the Commonwealth and County jointly purchase an agricultural conservation easement as to any particular parcel of property. The State Board has sixty days to act upon the recommendation of the CCALPB; if the State Board fails to act within the sixty days, the recommendation of the CCALPB is deemed approved. Separate and apart from the above, the CCALPB also serves as an advisory body to the Chester County Commissioners as to the purchase of agricultural conservation easements with monies generated by bonds issued by the County. In that role the CCALPB makes recommendations to the County Commissioners with the only difference being that there is no deemed approval with regard to recommendations made to the County Commissioners for the purchase of agricultural conservation easements. You have submitted a Memorandum of Law which presents the following arguments in support of your appeal. The CCALPB members cannot deviate from regulations set out by the State Board so that the CCALPB members have no discretion and merely perform a mechanical /advisory function. The CCALPB is an advisory board which may make recommendations to the State Board. Further, the CCALPB has no power to adopt rules or regulations without the authorization of the State Board and the State Board establishes the standards as to which there must be total compliance by the CCALPB. The CCALPB does not jointly purchase easements with the Commonwealth because it is the county rather the CCALPB that engages in such activity. The statement in the Advice of Counsel that the CCALPB may select and retain an independent licensed real estate appraiser is incorrect since the county supplies the money to hire staff and administer the county program. The CCALPB may not expend any funds without the approval of the County or the State Board and hence does not exercise the power of the Commonwealth. The CCALPB does not make any binding decisions which must be approved by the governing authority, the State Board or the County; the CCALPB only makes recommendations and does not perform any essential government function. Any decisions to appraise Thomas C. Abrahamsen, Esquire June 29, 1992 Page 3 property are done pursuant to regulations which have been approved by the State Board and the CCALPB does not have the power to adopt or promulgate rules and regulations without the authorization of the State Board; in any event such rules or regulations promulgated by the CCALPB are only in the nature of recommendations as to the State Board. The CCALPB does not have the power of eminent domain, condemnation, nor does it exercise the power of a political subdivision of the Commonwealth. From the above arguments, you conclude that the members of the CCALPB are not public officials under the definition of that term in the Ethics Law and regulations of this Comission. At the hearing on your appeal, you proffered the following arguments in support of your appeal. The Agricultural Conservation Easement Law must be read in its totality because if only certain sections are read, a misperception could arise that county boards have more powers than they actually do. County boards are voluntary /advisory because everything they do must be approved by the county-commissioners or the State Board. There is nothing that the county boards may do without obtaining some other approval except for appraising property which is similar to getting information in order to give advice. Any offer of purchase for an easement is contingent upon approval from the State Board. In addition, the setting up of the program and the promulgation of regulations must be approved by the State Board. The CCALPB cannot hire staff or expend funds since it is the County that hires or supplies funding. As to the evaluation of applications for easements, the ranking is mechanical so as not to involve any subjectivity. There is more subjectivity in setting up the program but once approved, the operation of the program is mechanical. Finally, you assert that 7 Pa. Code S138e.13(e) which requires county boards to comply with the Ethics Law only means that the Ethics Law applies but does not cover the CCALPB who are not public officials. III. DISCUSSION: We must determine whether the CCALPB Members are public officials under the Ethics Law so as to be subject to the provisions of the Ethics Law including the filing requirements as to Statement of Financial Interests. The enabling legislation for such county boards is set forth in the Agricultural Area Security Law, 3 P.S. 5901 et lea., which specifically provides in part: (2) It shall be the duty and responsibility of the county board to exercise the following powers: (i) To adopt rules and regulations for the administration of a countywide program Thomas C. Abrahamsen, Esquire June 29, 1992 Page 4 for the purchase of agricultural conservation easements within agricultural security areas in accordance with the provisions of this act, including, but not limited to, rules and regulations governing the submission of applications by landowners, establishing standards and procedures for the appraisal of property eligible for purchase as an agricultural conservation easement and establishing standards and procedures for the selection or purchase of agricultural conservation easements. (ii) To adopt rules of procedure and bylaws governing the operation of the county board and the conduct of its meetings. (iii) To execute agreements to purchase agricultural conservation easements in the name of the county. (iv) To purchase in the name of the county agricultural conservation easements within agricultural security areas. (v) To use moneys appropriated by the county governing body from the county general fund to hire staff and administer the countywide program. (vi) To use moneys appropriated by the county governing body from the county general fund or the proceeds of indebtedness incurred by the county and approved by the county governing body for the purchase of agricultural conservation easements within agricultural security areas. (vii) To establish and maintain a repository of records of farm lands which are subject to agricultural conservation easements purchased by the county and which are located within the county. (viii) To record agricultural conservation easements purchased by the county in the office of the recorder of deeds of the county wherein the agricultural conservation easements are located and to submit to the State board a certified copy of agricultural conservation easements within 30 days after recording. The county board shall attach to all certified copies of the agricultural conservation easements submitted to the State board a description of the farm land subject to the Thomas C, Abrahamsen, Esquire June 29, 1992 Page 5 3 P.S. §914.1. agricultural conservation easements. (ix) To submit to the State board for review the initial county program and any proposed revisions to approved county programs for purchasing agricultural conservation easements. (x) To recommend to the State board for purchase by the Commonwealth agricultural conservation easements within agricultural security areas located within the county. (xi) To recommend to the State board the purchase of agricultural conservation easements by the Commonwealth and the county jointly. (xii) To purchase agricultural conservation easements jointly with the Commonwealth. (xiii) To exercise other powers which are necessary and appropriate for the exercise and performance of its duties, powers and responsibilities under this act. The members of the CCALPB apparently consider that they are purely an advisory board without any authority to expend public funds or to otherwise exercise the power of the State or any-public subdivision so as not to be subject to the filing requirements or general restrictions in the Ethics Law. Our determination of whether the board members are public officials must be made by reviewing the powers and duties enumerated in the statute and regulations thereon rather than those powers which may be actually exercised by the CCALPB. The foregoing test which is utilized by this Commission in determining whether a given individual is a public official/ employee is an objective test whereby the controlling element is the powers and duties granted by statute rather than those actually exercised. The utilization of this test has been specifically upheld by the Commonwealth Court in Phillips v. State Ethics Commission, 79 Pa. Commw. Ct. 491, 470 A.2d 659 (1984). We must apply the foregoing statutory-and following regulatory powers to the term "public official" as defined in Act 9 of 1989 and the current regulations in 51 Pa. Code §1.1. The term "public official" is defined as follows under Section 2 .of the Ethics Law: Thomas C. Abrahamsen, Esquire June 29, 1992 Page 6 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. 65 P.S. S402. The regulations provide as follows as to this term: 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 term 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 Thomas C. Abrahamsen, Esquire June 29, 1992 Page 7 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. (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) Persons who report directly to heads of executive, legislative and independent Thomas C. Abrahamsen, Esquire June 29, 1992 Page 8 51 Pa. Code §1.1. agencies, boards and commissions except clerical personnel. (D) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (E) School superintendents and assistant superintendents. (F) Persons appointed to positions designated as offices by code, charter or the like of the Commonwealth or its political subdivisions. (G) Members of municipal, industrial development, housing, parking and similar authorities. (H) Members of zoning hearing boards and similar quasijudicial bodies. (I) Members of other public bodies meeting the criteria set forth in subparagraph (i)(A). In applying the Ethics Law and Regulations to the facts of this matter, we do not believe that the CCALPB is purely an advisory body. It is clear that county boards do make decisions in this process. Such discretionary action in implementing the statute and the regulations thereon is beyond an advisory function. County boards select which parcels of property, proposed for easement purchase, will be appraised. Such action by the county boards unquestionably has the effect of eliminating many applicants and thereby limiting the pool of applicants that are submitted to the State Board for actual purchase. In addition, since county boards may make offers which cannot exceed the appraised value, it is possible that a county board could make a very low offer on certain parcels so that the owners would reject the offer;, the net effect is that the county board could effectively eliminate certain applicants from agricultural conservation easement purchases. A review of the process indicates that it is a two -step process whereby the county boards make decisions as to evaluating applications and selecting certain parcels of property for appraisal which may be submitted to the State Board for the second phase of the process. In so doing, the county boards are exercising a governmental function which is beyond that of a purely advisory function. Thomas C. Abrahamsen, Esquire June 29, 1992 Page 9 It is argued that we misperceive the powers of the county boards by only looking at the enumerated powers and duties in 3 P.S. §914.1(b)(2) and not considering the limitations of those powers as set forth in the entire law. Although it is unquestionably true that all of the provisions of the Agricultural Conservation Easement Law should be reviewed and although it is true that there is an interplay between the state and county boards, we do not agree that the powers awarded to the county boards in Subsection (b) of the law are eroded elsewhere in that law. For example, the argument that the CCALPB regulations have to be approved by the State Board is not meaningful since the State Board just as other government agencies must go through an approval process for regulations. See, Act 19 of 1989, 71 P.S. §745.1. We find the argument that the county boards only recommend purchases to the State Board peculiar because the assertion was made in Wolff, Opinion 89 -030 that it is the county boards which in actuality make the decisions to purchase. It is clear under the statute that the State Board may only reject a recommendation for any one of five enumerated reasons. 3 P.S. §914.1(e)(1). If we were to accept the argument in Wolff, supra, that the county boards in reality make the decisions to purchase with a pro forma approval by the State Board and the argument in this case that the county boards do not make the decisions which are made by the State Board, we are left with the nonsensical result that easements are purchased without either the State or county boards making decisions thereon. Parenthetically, we have great difficulty with the claim that the CCALPB performs a non - subjective mechanical function in this process; if this were true, there would be no need for the Board. It is also argued that the CCALPB staff, such as appraisers, are merely recommended by that Board to the county which contracts for the hiring. Even if this were true, county boards under the Agricultural Conservation Easement Law have such powers and hence the argument is of no import under the the Phillips decision. Likewise, under our Regulations, the activities in question fall within Subsection (i)(B)(II), (V) and (VIII). The foregoing is based upon the activities of the CCALPB as set forth in the original advisory request together with the powers and duties as outlined in the Agricultural Area Security Law and their regulations, infra. In addition, the Agricultural Area Security Law provides that a county board may execute agreements and purchase county agricultural conservation easements with funds appropriated by the county. The foregoing law also allows for the purchase of easements jointly with the Commonwealth. Finally, the county boards are granted broad general powers necessary for the performance of their duties. Thomas C. Abrahamsen, Esquire June 29, 1992 Page 10 We also that note under the Agricultural Conservation Easement Purchase Program regulations, 7 Pa. Code §138e.1 alma. various powers and duties are conferred upon county boards. County boards have the power to adopt numerical ranking systems to prioritize applications. 7 Pa. Code §138e.15(a). Although it is conceded that there is subjectivity in setting up the ranking system, it is argued that the application is mechanical. Once again, if the application is not subjective, why have a county board to perform such a function. County boards review applications to determine whether minimum criteria are met and, if met, a ranking is made. 7 Pa. Code §138e.62. The power of county boards to offer to purchase easements is set forth in 7 Pa. Code §137e.65. 7 Pa. Code S138e.201 grants the power to county boards to inspect easements for compliance and enforce easements. Under 7 Pa. Code §138e.202(d), county boards have the power to make decisions as to whether there is easement compliance. The power of enforcement is granted to county boards by 7 Pa. Code S138e.204. The power to commence and prosecute an easement enforcement action by county boards is set forth in 7 Pa. Code §138e.206. Lastly, we note the importance of Section 138e.13(e) of their regulations: (e) Members of a county board shall comply with the act of October 4, 1978 (P.L. 883, No. 170) (65 P.S. §S401 -413), known as the Public Official and Employee Ethics Law. 7 Pa. Code §138e.13(e). The State Board is a governmental body under Section 2 of the Ethics Law and may pursuant to Section 11, 65 P.S. S411, adopt requirements to supplement the Ethics Law. Thus, separate and apart from the issue of coverage of the CCALPB under the Ethics Law, the State Board has the power to impose requirements to supplement the Ethics Law which was done in this case. It is argued that the above provision as to Ethics Law compliance merely means that the law is in force which exempts CCALPB from coverage. In short, non - compliance with the Ethics Law is interpreted to mean compliance. If the above provision merely means that the Ethics Law is in force, such an interpretation would render the subsection superfluous since the enactment of a bill gives it the force of law which need not be repeated subsequently in regulations or elsewhere to insure vitality. We will not strain to reach such a convoluted interpretation of the subsection which on its face subjects county boards to the provisions of the Ethics Law. Based upon the above, it is clear that the CCALPB members are public officials subject to the filing requirements and provisions of the Ethics Law. We reach the foregoing result for two separate and distinct reasons. First, the CCALPB members are covered Thomas C. Abrahamsen, Esquire June 29, 1992 Page 11 through an application of the Ethics Law and our regulations as to the Agricultural Conservation Easement Law and the regulations thereon. Secondly, through Section 11 of the Ethics Law, 65 P.S. 5411, the State Board has the power to impose a requirement to supplement the Ethics Law which it has done in 7 Pa. Code S138e.13(e) which reaches the very same terminus, namely coverage of county boards under the Ethics Law. The propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Law. Iv. CONCLUSION: The members of a County Agricultural Land Preservation Board are public officials subject to the filing requirements and general provisions of the Ethics Law. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, James M. Howley _ Chair