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HomeMy WebLinkAbout20-542 KormanPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: FOUR, FErs TI-4 R I No= I Mm STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 November 9, 2020 FACSIMILE: 717-787-0806 WEB,SITE: www.ethics.pa.gov This responds to your letter dated September 21, 2020 (postmarked September 25, 2020, received October 5, 2020), by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"). Issue: Whether, in your former capacity as a Member of the Pennsylvania 70—mmission for the United States Serniquincentennial (which commission is also known —and is hereinafter referred to —as America250PA), you would be considered a "public official" subject to the Public Official and Employee Ethics Act (the "Ethics Act"), 65 Pa.,C.S. 1101 et s,eq., and the Reclations of the State Ethics Commission, 51 Pa. Code § 11. Pet seg., a--nTparticularly, the requirements for filing Statements of Financial Interests. Facts: You seek a determination as to whether, In your former capacity as a M-e-m-5er of America250PA, you would be considered a "pqblic official" subject to the Ethics Act and the Reclations of the State Ethics Commission and particularly, the requirements for filing Statements of Financial Interests. Administrative notice is taken of the following information: America250PA was establishedby the Pennsylvania Commission for the United States Semiquincentennial Act. See, 71 P.S. § 1047.3. America250PA is comprised of: (1) one Pennsylvania State Senator appointed by the Majority Leader of the P,ennsKIvania Senate ("Senate"); (2) one Pennsylvania State Senator appointed by the Minority Leader of the Senate; (3) one Pennsylvania State Representative, appointed by the Speaker of the Pennsylvania House of Representatives ("House'); (4) one Pennsylvania State Representative appointed by the Minority Leader of the House; (5) twenty private citizens appointed by the Governor, the Majority Leader or Minority of the Senate, the Speaker of the House, or the Minority Leader of the House; and (6 various individuals serving as ex officio nonvoting Members. See, 71 P.S . § 1M.4. * America250PA has the following statutory general powers and duties: § 1047.7. General powers and duties The commission shall: Korman, 20-542 o�ber 9, 2020 Page 2 (1) Plan, coordinate and implement an overall program commemorating the 250th anniversary of the founding of the United States in the year 2026, specifically highlighting the role of Pennsylvania and Pennsylvanians in and the events succeeding the historic event. (2) Plan, coordinate and implement the Pennsylvania pavilion. (3) Coordinate with all Federal, State and local agencies on infrastructural improvements and projects to welcome regional, national and international tourists. 71 P.S. § 1047.7. • America250PA has the following additional powers: § 1047.12. Additional powers As determined necessary by the commission, the commission may: (1) Procure supplies, services and property. (2) Make contracts. (3) Expend, in furtherance of this act, funds donated or received in pursuance of contracts entered into under this act. (4) Take actions as are necessary to enable the commission to carry out efficiently and in the public interest the purpose of this act. 71 P.S. § 1047.12. Section 1047.11 of the Pennsylvania Commission for the United States Semiquincentennial Act provides, in pertinent part, that America250PA "may accept, use and dispose of gifts and donations of money, property or personal services ...." See, 71 P.S. § 1047.11. You state that you were appointed to America250PA by the Honorable Jake Corman, Majority Leader of the Senate. You state that you were never informed that you would be subject to financial disclosure requirements as a result of accepting the appointment to America250PA and that if you had been so informed, you would have declined the appointment. You further state that you were a Member of America250PA from May 2019 until April 2020, when you resigned from America250PA to pursue other interests. You state that you had no special or unique responsibilities as a Member of America250PA and that your participation was very limited. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been Korman, 20-542 o—ov—e--ber 9, 2020 Page 3 submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthffully disclosed all of the material facts. The term "public official" is defined in the Ethics Act as follows: § 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. 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 moneys, 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. (11) The body exercises a basic power of government and performs essential governmental functions. (111) 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. Korman, 20-542 oN ve mer g, 2020 Page 4 (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 politicall 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 Ethics Act's definition of the term "public official," the first portion of the definition provides that a public official is a person who is: (1) elected by the public; (2) elected or appointed by a governmental body; or (3) an appointed official in the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02-007. When the first portion of the definition is met, status as a public official subject to the Ethics Act is established, unless the exclusion for members of purely advisory boards is applicable. Eiben, Opinion 04-002. The fact that you were appointed by the Ma ority Leader of the �e to America250PA—a statutorily created commission within State government — satisfies the first portion of the definition. As for the remainder of the definition, the necessary conclusion is that you would not fall within the statutory exception for members of purely advisory boards lacking authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or a political subdivision. Pursuant to Sections 1047.11 and 1047.12 of the Pennsylvania Commission for the United States Semiquincentennial Act, America250PA has the power to: (1) accept, use and dispose of gifts and donations of money, property, or personal services; (2) procure supplies, services, and property; (3) make contracts; and (4) expend funds donated or received in Korman, 20-542 amber 9, 2020 Page 5 pursuance of contracts entered into under the Pennsylvania Commission for the United States Semiquincentennial Act. Given the foregoing powers, it is clearthat America250PA has the power to expend public funds. Therefore, based upon the provisions of the Ethics Act, the Regulations of the State Ethics Commission, and the Commission's Opinions, the necessary conclusion is that in your former capacity as a Member of America250PA, you would be considered a "public official" subject to the Ethics Act and the Regulations of the State Ethics Commission, and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Conclusion: In your former capacity as a Member of the Pennsylvania ommission for the United States Semiquincentennial (which commission is also known as America250PA), you would be considered a "public official" subject to the Public Official and Employee Ethics Act (the "Ethics Act"), 65 Pa.C.S. § 1101 et seq., and the Regulations of the Pennsylvania State Ethics Commission, 51 Pa. Coded 11.1 et seq., and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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 Opin►on will be issued by the Commission. Any such appeal must be in writing and must be actualIX received at the Commission within thirt( (30) days of the date�►s Advice pursuant to 51 Pa. Code § 13.2h The appeal may be received at the Commission by hand delivery, Un►ted States mail, delivery service, or by FAX transmission f7it7-787-0806). Failure to file such an appeal at t e Commission within thirty (30) days may result in the dismissal of the appeal. Since ly, Robin M. Hittie Chief Counsel