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HomeMy WebLinkAbout95-006-R GentDear Mr. Gent: I. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger John R. Showers Rev. Joseph G. Quinn Boyd E. Wolff DATE DECIDED: 08/04/95 DATE MAILED: 08/14/95 Henry W. Gent, III, Esquire Gene, Gent and Snyder Attorneys at Law 314 West Park Street Franklin, PA 16323 -1390 95 -006 -R Re: Public Official /Public Employee, Statements of Financial Interests, Area Loan Organizations, Capital Loan Fund Act, Regional Planning and Development Commission, Non - Profit Corporation, Reconsideration. This Opinion is issued in response to your timely request for reconsideration of Area Loan Organizations Under Capital Loan Fund Act, Opinion 95 -006, insofar as it relates to your client, the Northwest Pennsylvania Regional Planning and Development Commission. Whether this Commission should grant reconsideration of that portion of Area Loan Organizations Under Capital Loan Fund Act, Opinion 95 -006, which relates to the Northwest Pennsylvania Regional Planning and Development Commission. II. FACTUAL BASIS FOR DETERMINATION: As counsel for the Northwest Pennsylvania Regional Planning Area Loan Organizations Under Capital Loan Fund Act, 95 -006 -R Page 2 and Development Commission ( "Northwest "), you initially requested an advisory as to whether Northwest's members /employees are public officials /public employees required to file Statements of Financial Interests pursuant to the Public Official and Employee Ethics Law. The facts are fully set forth in Opinion 95 -006 and shall not be repeated herein. However, it is noted that Northwest is a non- profit corporation which was incorporated to fulfill the general purposes set forth in the Regional Planning Law, 53 P.S. §491 et seq. Northwest includes and represents eight counties and all of the municipal subdivisions therein. Northwest's members include elected officials and private citizens, all of whom are appointed. The private sector appointments are made by Northwest. Finally, Northwest is a party to various agreements with the Commonwealth of Pennsylvania, including an agreement through the Department of Commerce by which Northwest administers loans to eligible enterprises in accordance with the Capital Loan Fund Act. In addition to the submitted facts, we reviewed various provisions of the Regional Planning Law. As a matter of law, regional planning commissions are established by ordinance or resolution of the legislative bodies of two or more "political subdivisions." 53 P.S. §494. The Regional Planning Law defines "political subdivision" to include any county, city, borough, incorporated town or township of the Commonwealth. 53 P.S. §492. The legislative bodies of the political subdivisions determine the number and qualifications of the members and their terms and method of appointment and removal. 53 P.S. §494. By law, a majority of the members of a regional planning commission must at the time of appointment and throughout the duration of their service be locally elected officials. Id. We reviewed the Ethics Law which defines the terms "public official" and "public employee" as follows: 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. "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a Area Loan Organizations Under Capital Loan Fund Act, 95 -006 -R Page 3 65 P.S. §402. nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. The key to determining the status of Northwest's members /employees as "public officials" or public employees" was determining whether Northwest was within the Ethics Law's definition of "political subdivision ": Section 2. Definitions "Political subdivision. city, borough, incorporated school district, vocational institution district, and entity or body organized mentioned. 65 P.S. §402 (Emphasis added). Any county, town, township, school, county any authority, by the afore- Given that, as a regional planning commission, Northwest is an "entity or body" which was organized by other political subdivisions, we concluded that Northwest is a "political subdivision" as defined in the Ethics Law. We noted that the exclusionary language applicable to purely advisory boards was inapplicable to Northwest because, as an area loan organization for the Capital Loan Fund, Northwest performs a governmental function beyond a purely advisory function. Opinion 95 -006 at 11 -12 (citing Abrahmason, Opinion 92 -004). We concluded that Northwest's members are "public officials" as defined in the Ethics Law and that they Area Loan Organizations Under Capital Loan Fund Act, 95 -006 -R Page 4 are required to file Statements of Financial Interests pursuant to the Ethics Law. We further concluded that those Northwest employees meeting the statutory and regulatory criteria are "public employees" and are also required to file Statements of Financial Interests pursuant to the Ethics Law. Your timely reconsideration request contends that the Commission erred in concluding that Northwest is a "political subdivision" as defined in the Ethics Law. Your argument, as we understand it, may be summarized as follows. You submit two initial premises. Via a statutory construction argument that general words are construed to take their meanings by preceding particular words, you propose that the Ethics Law's definition of "political subdivision" is restricted to bodies or entities which are either governed by elected officials or are "created" by the action of the type of political subdivision governed by elected officials. You further propose that in order for an "entity" or "body" to be considered such a "political subdivision" it must have been "organized" by specific types of governmental units identified in the definition. You then seek to draw a distinction between "organizing" a body or entity and authorizing its establishment. You claim that the Regional Planning Law does not envision political subdivisions "organizing" a regional planning commission, but rather, authorizing its establishment. You feel that this is a distinction and that it is significant in light of 15 Pa. C.S.A. §5302, pursuant to which you state a political subdivision would not have the authority to incorporate a non - profit corporation such as Northwest. You note that Northwest's incorporators were individuals and not political subdivisions. You argue that insofar as this Commission made a distinction in Opinion 95 -006 between entities whose members are appointed and those whose members join through an application process, you believe that the "same" distinction should be made between a governmental body authorizing the establishment of a corporation as opposed to "organizing" it. By letter dated July 28, 1995, you advised that you would not attend the public meeting at which your reconsideration request would be considered but continue to advocate for a grant of reconsideration. III. DISCUSSION: We have been asked to reconsider Opinion 95 -006. This Commission may exercise broad discretion in determining whether to grant or deny reconsideration as long as such discretion is exercised in a sound manner. Krane, Opinion 84- 001 -R; PSATS v. State Ethics Commission, 92 Pa. Commw. Ct. 544, 499 A.2d 735 (1985). Area Loan Organizations Under Capital Loan Fund Act, 95 -006 -R Page 5 The Regulations of this Commission in effect at the time Opinion 95 -006 was decided provided: §13.3. Opinions. (d) Reconsideration may be granted in the discretion of the Commission under §21.29(e). §21.29. Finality; reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 15 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (e) Reconsideration may be granted at the discretion of the Commission if: (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. 51 Pa. Code, §§ 13.3, 21.29. (1) A material error of law has been made. (2) A material error of fact has been made. We must determine whether you meet the criteria for reconsideration. We determine that you do not meet the criteria. The basis for your request for reconsideration is your contention that the Commission made a material error when it determined that Northwest is a "political subdivision" as defined in the Ethics Law. You submit two initial premises for your argument: (1) that the Ethics Law's definition of "political subdivision" is restricted to bodies or entities which are either governed by elected officials or are "created" by the action of the type of political subdivision governed by elected officials; and (2) that in order for an "entity" or "body" to be considered such a "political subdivision" it must have been "organized" by specific types of governmental units identified in the definition. These premises appear to adhere to the definition of "political subdivision." However, were we to accept your initial premises as true, we nevertheless would not -- and do not -- agree with the crux of your argument, which is that the functions of legislative bodies under §494 of the Regional Planning Law do not constitute "organizing" regional planning commissions. Area Loan Organizations Under Capital Loan Fund Act, 95 -006 -R Page 6 Section 494 of the Regional Planning Law provides: ARTICLE III. REGIONAL PLANNING § 494. Creation, appointment and operation of regional Planning Commission. (a) The legislative body of two or more political subdivisions may, by ordinance or resolution, authorize the establishment or membership in and support of a regional planning commission. The number and qualifications of the members of any regional planning commission and their terms and method of appointment or removal shall be such as may be determined and agreed upon by the legislative bodies. A majority of the members of the regional planning commission shall at the time of appointment to the commission and throughout the duration of their service on the commission be locally elected officials. Members of a regional planning commission shall serve without salary but may be paid expenses incurred in the performance of their duties. The regional planning commission shall elect a chairman whose term shall not exceed one year and who shall be eligible for reelection. The commission may create and fill such other offices as it may determine. (b) Every regional planning commission shall adopt rules for the transaction of business and shall keep a record of its resolutions, transactions, findings and determinations, which record shall be a public record. Every political subdivision may, from time to time upon the request of the regional planning commission, assign or detail to the commission any employes of a political subdivision to make special surveys or studies requested by the commission. 53 P.S. §494. By its own terms, §494 of the Regional Planning Law provides for the "Creation, appointment and operation of regional Planning Commission[s]." By adopting ordinances or resolutions authorizing the establishment or membership in and support of a regional planning commission, and determining the number and qualifications of its members, their terms, and the method of their appointment and removal, the legislative bodies of the political subdivisions both "authorize" and "organize" regional planning commissions. Any argument to the contrary belies logic, common sense, and the plain language of the statute, on its face. As a regional planning commission established pursuant to §494 above, Northwest was both "authorized" and "organized" by the action of political subdivisions governed by elected officials. We parenthetically note that the Regional Planning Law does not appear to require that regional planning commissions Area Loan Organizations Under Capital Loan Fund Act, 95 -006 -R Page 7 incorporate as non - profit corporations, and the fact that Northwest chose to incorporate as a non - profit corporation does not alter our conclusions in Opinion 95 -006. We note that the Ethics Law does not specifically exclude non - profit corporations from the definition of "political subdivision." As for the distinction in Opinion 95 -006 between Northwest, an area loan organization whose members are appointed by political subdivisions, and the five other area loan organizations whose members apply for membership very much like joining a club,, the distinction is founded in the express language of the Ethics Law's definition of "public official," supra. In that there has been no material error of fact or law or new evidence, we deny the request for reconsideration. We parenthetically note that our decision in Opinion 95 -006 is in accordance with existing law, and that coverage under the Ethics Law is to be construed broadly while exclusion from coverage is to be construed narrowly. Phillips v. State Ethics Com'n., 79 Pa. Commw. 491, A.2d 659 (1984). IV. CONCLUSION: The request for reconsideration of Area Loan Organizations Under Capital Loan Fund Act, Opinion 95 -006 is denied. 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 thirty 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, 06 &AL., Daneen E. Reese Chair