HomeMy WebLinkAbout20-542 KormanPHONE: 717-783-1610
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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