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HomeMy WebLinkAbout95-006 EdwardsBefore: Dear Gentlemen and Ladies: STATE ETHICS COMMISSION 30a FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Boyd E. Wolff DATE DECIDED: 05/05/95 DATE MAILED: 05/16/95 Raymond J. DeRaymond, Esquire DeRaymond & Smith Attorneys at Law 717 Washington Street Easton, PA 18042 Katherine B. L. Platt, Esquire Platt, DiGiorgio & DiFabio 1800 East Lancaster Avenue Paoli, PA 19301 -1533 Jill D. Edwards Assistant Secretary SEDCO Small Enterprise Development Company 1600 Pennsylvania Avenue York, PA 17404 95 -006 Henry W. Gent, III, Esquire Gene, Gent and Snyder Attorneys at Law 314 West Park Street Franklin, PA 16323 -1390 Mark H. Scoblionko, Esquire Scoblionko, Scoblionko, Muir & Bartholomew P.O. Box 1998 40 South Fifth Street Allentown, PA 18105 Christopher M. Vedder, Esq. Morris & Vedder 32 North Duke Street P.O. Box 544 York, PA 17405 Re: Public Official /Public Employee, Statements of Financial Interests, Area Loan Organizations, Capital Loan Fund Act, Regional Planning and Development Commission, Development Council, Economic Advancement Project, Small Enterprise Development Company, New Jobs Corporation, Non- Profit Corporation. This Opinion is issued pursuant to your various letters of Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 2 request dated from December, 1994 through February, 1995. I. ISSUE: Whether members /employees of various "area loan organizations" under the Capital Loan Fund Act are public officials /public employees required to file Statements of Financial Interests pursuant to the Public Official and Employee Ethics Law. II. FACTUAL BASIS FOR DETERMINATION: Each of you has requested an opinion from the State Ethics Commission as to whether the members /employees of a particular entity serving as an "area loan organization" under the Capital Loan Fund Act, 73 P.S. 9394.1 et sec., would be "public officials /public employees" required to file Statements of Financial Interests pursuant to the Ethics Law. The Capital Loan Fund Act defines "area loan organization" or "organization" in such a way as to include private entities: area loan organization" or "organization:" A local development district of the Appalachian Regional Commission, an industrial development corporation organized and existing under the act of May 17, 1956 (1955 P.L. 1609, No. 537), known as the Pennsylvania Industrial Development Authority Act, or any other nonprofit economic development organization certified or designated by the secretary as possessing an acceptable loan review committee, professional staff support and such other qualifications necessary to evaluate and administer loans made under the provisions of this act. 73 P.S. 5394.2 (Emphasis added). The Capital Loan Fund includes both state end federal funds. 73 P.S. 5394.3. The Commonwealth of Pennsylvania through the Department of Commerce enters into loan agreements with various area loan organizations, which agreements specify the terms and conditions by which the area loan organizations are to administer loans to eligible enterprises. The loans are made by the Department of Commerce to the area loan organizations, with the area loan organizations thereafter making the loans to the eligible enterprises. The area loan organization initially acts to approve or disapprove loan applications. If the area loan organization disapproves an application, it goes no further. If the area loan organization approves an application, it is forwarded to the Department of Commerce for final approval. ' However, under a decentralization policy effective January 1, 1994, the area loan Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 3 organizations exercise a high degree of authority in day -to -day operations. For many of the loans serviced, the area loan organization does all of the financial review, with the Department of Commerce performing an administrative review to ensure conformity to Capital Loan Fund statues, guidelines and policies. In the event of default, the area loan organization acts to collect on the loan. The pertinent facts which have been submitted regarding the particular organizations before us are set forth as follows: NORTHWEST PENNSYLVANIA REGIONAL PLANNING AND DEVELOPMENT COMMISSION ( Northwest has submitted various materials including its By- Laws and Articles of Incorporation, which documents are incorporated herein by reference. Northwest is a non - profit corporation incorporated under the laws of the Commonwealth of Pennsylvania to fulfill the general purposes set forth in the Regional Planning Law, 53 P.S. 5491 fl seq. The Commission takes notice that as a matter of law, regional planning commissions including Northwest are established by ordinance or resolution of the legislative bodies of two or more political subdivisions, 53 P.S. 5494, which are defined in the Regional Planning Law to include any county, city, borough, incorporated town or township in the Commonwealth. 53 P.S. 5492. The legislative bodies determine the number and qualifications of the members and their terms and method of appointment and removal. 53 F.S. 5494. 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. Northwest includes and represents eight counties and all of the municipal subdivisions within those counties. (By -Laws, Article 2). Northwest has a total membership of eighty -six (86), including elected officials from the eight counties it represents as well as private citizens. Each member is appointed, whether as a result of his status as an elected official or as a private citizen. The private sector appointments to the membership of Northwest are made by Northwest. Northwest is a party to various agreements with the Commonwealth of Pennsylvania as follows: a. Grant Agreement dated August 31, 1994 providing for grant in the amount of $5,000.00 to Northwest by the Department of Commerce; Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 4 b. Agreement between Northwest and the Commonwealth of Pennsylvania acting through the Department of Community Affairs identified as Contract for Legislative Initiative Program providing for a grant in the amount of $2,000.00; c. Grant Agreement dated December 16, 1994 providing for grant to Northwest in the amount $19,500.00 through the Department of Commerce under the Regional Export Matching Grant Program; d. Contract for the establishment, expansion, or improvement of county rehabilitation programs between the Commonwealth of Pennsylvania, by the Office of Vocational Rehabilitation, and Northwest dated April 8, 1994 providing for a grant award in the amount $213,388.00; e. Agreement between Northwest and the Commonwealth of Pennsylvania, acting through the Department of Transportation, dated July 12, 1994 under which Northwest provides transportation planning services for an annual fee of. $61,426.00; f. Enterprise Development Grant Agreement between Northwest and the Commonwealth of Pennsylvania acting through the Department of Commerce dated August 18, 1994 under which Northwest serves as a Local Development District to develop, promote and administer Enterprise Development programs, services and activities within its geographical area, in accordance with the Commonwealth's Annual Appalachian, Development Plan; g. Loan Agreement between Northwest and the Commonwealth of Pennsylvania acting by and through the Department of Commerce dated July 1, 1991 under and by virtue of which Northwest administers loans to eligible enterprises in accordance with the Capital Loan Fund Act. Counsel for Northwest has proffered its opinion that Northwest is neither a political subdivision nor a governmental body as defined by the Ethics Law, and that its employees are neither public employees nor public officials. Further, counsel contends that even though some members of Northwest are public officials, they do not attain that status by virtue of their membership with Northwest but rather by their election to public office. Counsel avers that these members must comply with the Ethics Law by virtue of holding public office rather than by serving as members of Northwest. Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 5 CHESTER COUNTY DEVELOPMENT COUNCIL ("CCDC') CCDC was incorporated in 1960 as a non- profit corporation. Its incorporators were private businessmen seeking to encourage industrial growth in Chester County. CCDC is a 501(c)(3) tax exempt organization. Copies of the Articles of Incorporation and By -Laws for CCDC have been submitted and are incorporated herein by reference. Members of CCDC are not appointed but seek to join CCDC by submitting an application to CCDC's Board of Directors. Applications are approved by majority vote. Membership is open to persons, firms and corporations (By -Laws, Article IV, Section I). CCDC members currently include approximately 850 private individuals and companies. To promote effective coordination of industrial development in Chester County, CCDC invites a staff member of the County Commissioners to sit in on meetings of CCDC's Board in a non - voting capacity. No political subdivision or entity has any involvement in the election of Board members or in the discharge of CCDC's administrative and loan functions. Approximately ten years ago an overture was made to bring CCDC into the County government which was rejected by the Board. CCDC is a qualified "industrial development agency for purposes of serving as a conduit for both PIDA loans and loans under the Capital Loan Fund Act. CCDC is not an industrial development authority,- however. Counsel for CCDC has suggested her opinion that CCDC is not covered under the Ethics Law based upon all of the above. LEHIGH'S ECONOMIC ADVANCEMENT PROJECT, INC. ('LEAP') The Industrial Development Corporation of Lehigh County was formed in 1958 by a group of private business people. After several years LEAP was formed to serve as the financing arm of the Industrial Development Corporation of Lehigh County. However, LEAP is a separate organization. LEAP is a non- profit corporation, organized and existing pursuant to the Pennsylvania Non- Profit Corporation Law. All of the incorporators were private business people, bankers, and the like. LEAP was not formed by a political subdivision, nor does it have any powers with respect to a political subdivision. Counsel for LEAP further states that LEAP has at no time ever been part of a political subdivision. Since its inception in 1961, LEAP's only purpose has been to engage in financing activities with the Pennsylvania Industrial Development Authority and, in the last five years or so, to serve as an area loan organization for the Capital Loan Fund. Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 6 Various documents have been submitted, including the By -Laws and Articles of Incorporation of LEAP; the application for charter of LEAP together with the related decree of Court; and the By -Laws and the Articles of Incorporation of the Industrial Development Corporation of Lehigh County, as amended, all of which documents are incorporated herein by reference. Membership in LEAP is limited to members of the Industrial Development Corporation of Lehigh County and its General Counsel. (By -Laws, Article IV, Section I). Any person who qualifies for membership in LEAP is automatically a member. Elements of government, private sector lending institutions, community organizations and business organizations are represented among the members of the corporation. (By -Laws, Article IV, Section II). It is noted that membership in the Industrial Development Corporation of Lehigh County is open to the County of Lehigh and any municipality, person, corporation, partnership, organization or group which is interested in, or contributes toward, the development of industry and commerce within the area. (By -Laws, Article II, Section I). Members are not appointed. Those interested in becoming members submit applications for membership to that corporation's Directors for approval (By -Laws, Article II, Section 2). Counsel for LEAP proffers his opinion that the Ethics Law would not have applicability to Members of LEAP. Counsel avers that LEAP is not a public authority or agency; that it is not subject to the Sunshine Act; that it may not be regarded as an instrumentality of the Commonwealth or any political subdivision of the Commonwealth; and that even if LEAP's members could be categorized as "public officials," they would fall within the exception for advisory boards which have no authority to expend public funds or otherwise exercise the power of the State or a political subdivision. SMALL ENTERPRISE DEVELOPMENT COMPANY ( "SEDCO") The initial letter of inquiry received from SEDCO indicated that SEDCO is a private, non- profit organization whose membership is comprised of business people in the private sector. The letter stated that SEDCO does not derive its authority from any governmental or quasi - governmental agency, and that its staff and members are not elected or appointed by any governmental body or public official. SEDCO's sole responsibility is to act as the local approving organization for loans to local businesses under the Pennsylvania Capital Loan Fund. It receives no grant funds or any other source of public sector revenue, only reimbursement of expenses incurred, as established by PCLF in 1994. SEDCO was formed in 1981 by a group of bankers and business people to further the economical development of York County and its Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 7 environs and to promote and assist the growth, development, or retention of business concerns in that area. According to early members of SEDCO, the corporation was envisioned by York County Industrial Development Corporation (a private, non- profit economic development corporation, formed in 1958 by bankers and community leaders) to provide a vehicle for the local administration of SBA 503 loans and was ultimately formed by private sector community leaders. A copy of the Articles of Incorporation -- with the original list of incorporators and their affiliations -- and the By -Laws have been submitted, which documents are incorporated herein by reference. According to the Articles of Incorporation, the members must be representative of the following five groups: 1. local government; 2. private sector lending institutions; 3. community organizations; 4. business organizations; and 5. public utilities. (By -Laws, Article IV, Section II). All SEDCO members since the beginning of the corporation's life have had affiliations in one or more of these groups except the local government category. There has never been an elected or appointed official as a member of SEDCO since its. inception. Those wishing to join SEDCO submit applications for membership to the Board of Directors for approval (By -Laws, Article IV, Section 4). Counsel for SEDCO states that members and Board members (these groups have identical membership) are nominated for membership by the nominating committee at the annual meeting. The nominating committee, an ad hoc committee of the Board, is chosen and approved by the Board prior to the annual meeting. It chooses as prospective members individuals who have experience in managing small businesses or in the case of bankers those who have experience in lending to small businesses. At the annual meeting the new membership and Board membership are voted on by the prior year's membership and Board membership. Additionally, there is a permanent committee, known as the Loan Application Review Committee, whose members are appointed by the Chairman of the Board of Directors of SEDCO. Members of the Loan Application Review Committee are not necessarily members of SEDCO itself, but they must include at least three persons representative of financial institutions. No action by the committee is binding unless it is approved or ratified by the Board Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 8 of Directors. In a filed Brief, the foregoing facts are restated and the following additional facts are added. SEDCO acts as the local approving organization for Pennsylvania Industrial Conversion Funds as well as the Pennsylvania Capitol Loan Fund. As to both funds, SEDCO has a loan agreement with the Pennsylvania Department of Commerce (Commerce) as to which SEDCO must abide. As to each loan made by Commerce to SEDCO, an approval letter and promissory note is executed and delivered by SEDCO to Commerce to evidence the proceeds received from which SEDCO makes loans to third persons. Under the established loan procedure, after a third party applies for a loan to SEDCO, an independent review of the application by the SEDCO loan committee and Board of Directors is made after which SEDCO approves, qualifies or rejects an application. If a loan is approved by SEDCO, it is sent to Commerce for final qualification and approval. SEDCO administers the final approved loans for which the third party gives SEDCO a Note and other documentation or collateral. As to the loan qualification/ administration, SEDCO abides by the terms of the loan agreements with Commerce. Counsel for SEDCO appeared at the public meeting on May 5, 1995, restated the above and proffered the following additional facts. SEDCO made SBA loans but found that. it was not an attractive financing vehicle for marketing and other reasons. When the Department of Commerce formulated this program, SEDCO considered it to be a good operating entity because a loan committee, officers and directors were in place. The incorporators of SEDCO elected the members who in turn elected the Board of Directors. SEDCO is a non - profit 506 organization with organization members and a Board of Directors who appoint the loan committee and officers. The five member groups of SEDCO are a good functioning group for the organization to achieve its goal of employment in the community. As to financing, SEDCO charges loan origination and loan application fees for making loans. SEDCO has an underlying agreement with the Department of Commerce whereby the loan money flows from the Department to SEDCO to the borrower under set guidelines. A borrower signs a promissory note to SEDCO along with other documents. SEDCO has a second lien 'position. SEDCO originally received a grant from the York County Industrial Development Corporation but that loan has been restructured so that certain money has been returned to the corporation even though there is no binding contract. As to any loan from the Department of Commerce, there is an approval letter. Any changes are also submitted to the Department of Commerce and no action is taken without an approval. The loan process has been streamlined by the Department of Commerce so that greater responsibility has been given to the loan organizations. The Department of Commerce has developed an evaluation mechanism to determine how much money should be granted to an organization to supplement its organization expenses. Such an approach has benefited both the Department of Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 9 Commerce and the organizations. Finally, it is believed that maintaining the membership structure of SEDCO with a good community base has resulted in good applications and loans. After paraphrasing the definitions of public official and public employee, counsel for SEDCO argues that because none of SEDCO's members are public officials /employees, the Ethics Law has no application to SEDCO. It is asserted that because no SEDCO member has been employed by the Commonwealth or a political subdivision nor elected or appointed by a governmental body or official in the Executive, Legislative or Judicial Branch of the State or a political subdivision, no member is a public official /employee so that the financial disclosure reporting requirements of the Ethics Law have no application. NORTHAMPTON COUNTY NEW JOBS CORP. ( "NCNJC ") NCNJC is a non- profit corporation which was incorporated on September 16, 1963. Copies of the Decree of Incorporation and Articles of Incorporation for NCNJC have been submitted and are incorporated herein by reference. Membership in the corporation is limited to persons who are United States citizens residing in Northampton County, who are 21 years of age and over, and who are members of the Industrial Development Commission of Northampton County, a Pennsylvania non- profit corporation having its principal office in the City of Easton, Pennsylvania. (By -Laws, Article IV, Section I). A copy of the Constitution and By -Laws of the Industrial Development Commission of Northampton County have also been submitted and are incorporated herein by reference. Qualifications for membership in that entity are specified in Article II of the Constitution and By -Laws. Membership is available to all members of the Chambers of Commerce throughout Northampton County, with the applications for membership being submitted by the Chambers of Commerce. Other individuals desiring membership, other than the members of the Chambers of Commerce, must be 21 years of age or over and citizens of the United States residing in Northampton County. "Sustaining members" are individuals, partnerships or corporations that have an extreme interest in the industrial promotion efforts such as merchants, utility companies, trucking companies, architects, contractors, and suppliers. NCNJC is registered in Pennsylvania as a non - profit corporation under the amended Non- Profit Corporation Law, and a copy of a subsistence certificate has been submitted and is incorporated herein by reference. Counsel for NCNJC submits that its members are not public officials, and that none have a membership by reason of being a public official or public employee, but are members of the Chambers of Commerce from throughout Northampton County. Counsel for NCNJC further submits that both of the foregoing corporations were incorporated with the specific Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 10 purpose of qualifying them as industrial development corporations, and that although they do borrow money in Pennsylvania Industrial Development Authority transactions and, in turn, pass the money through to industrial corporations and also borrow money from the Pennsylvania Capital Loan Fund and lend the amounts to industries and individuals for machinery, these are business transactions and do not qualify the corporations, their officers and employees as individuals who would be required by the Ethics Law to file an annual Statement of Financial Interests. III. DISCUSSION: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 55407(10), (11), advisories/ opinions are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory /opinion based upon the facts which the requestor has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the materials facts relevant to the inquiry. 65 P.S. 55407(10), (11). An advisory /opinion only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. In this case, we must determine whether members /employees of various entities serving as area loan organizations under the Capital Loan Fund Act are public officials /public employees required to file Statements of Financial interests pursuant to the Ethics Law. The Ethics Law sets forth the following pertinent definitions: Section 2. Definitions "Public Official." Any 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 nonministerial nature with regard to: Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 11 65 P.S. 5402. (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. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Political subdivision. city, borough, incorporated school district, vocational institution district, and entity or body organized mentioned. " Any county, town, township, school, county any authority, by the afore- Sections 4 and 5 of the Ethics Law, 65 P.S. 53404, 405, require public officials /public employees to file annual Statements of Financial Interests for each year the position is held and the year after the individual leaves the position. Before addressing these provisions as they apply to the individual entities that have sought an opinion from this Commission, we would note that among the most important facts involving the function of area loan organizations is the fact that they may exercise their power to eliminate applicants from governmental loan programs. The power to eliminate applicants from Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 12 : governmental programs has been held by this Commission to be the exercise of a governmental function and beyond a purely advisory function. Abrahamson, Opinion 92 -004. However, it is not only the function performed by these entities which is significant -- we must also review their organizational nature to determine whether they fall within the pertinent definitions of the Ethics Law which delineate our jurisdiction. We shall first discuss Northwest. NORTHWEST PENNSYLVANIA REGIONAL PLANNING AND DEVELOPMENT COMMISSION (•Northwest') As a regional planning commission created under the Pennsylvania Regional Planning Law, Northwest is a political subdivision as that term is defined in the Ethics Law. By law, regional planning commissions are established by the authority of the legislative bodies of two or more political subdivisions. 53 P.S. §494. Thus, a regional planning commission is an entity or body organized by political subdivisions and falls squarely within the aforesaid definition. Northwest includes and represents eight counties and all other municipal subdivisions within those counties. (By -Laws, Article II). Its members are appointed, both pursuant to law, 53 P.S. §494(a), and to its By -Laws (Article II). Therefore, its members would be "public officials" subject to the requirements of the Ethics Law. Given that Northwest is an area loan organization under the Capital Loan Fund Act and through its disapproval of loan . applications may effectively eliminate applicants from this governmental loan program, Northwest may not be viewed as a purely advisory board. Therefore, the exclusionary language set forth in the definition of "public official" would not be applicable. Northwest's employees are employees of a political subdivision. To the extent any employee would meet the statutory definition of "public employee" set forth above, as explained by the regulations of this Commission, see, 51 Pa. Code 511.1, the employee would also be subject to the filing requirements for Statements of Financial Interests pursuant to the Ethics Law. Finally, we note that Northwest and the other entities which we are reviewing are non - profit corporations. The pertinent definitions set forth in Act 9 of 1989 contain no exclusion based upon status as a non - profit corporation. 65 P.S. 8402. To the contrary, the term "political subdivision" (defined for the first time in Act 9) not only includes counties, cities, boroughs, and the like, but also expressly includes: ". . . any authority, entity or body organized by the aforementioned." 65 P.S. 402 (Emphasis added). Therefore, we conclude that Northwest is a "political subdivision" as defined in the Ethics Law; that it is not an advisory board within the exclusionary language set forth in the Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 13 definition of "public official "; and that its members and qualifying employees are "public officials " / "public employees" required to file Statements of Financial Interests pursuant to Sections 4 and 5 of the Ethics Law. CHESTER COUNTY DEVELOPMENT COUNCIL ("CCDC") Given that CCDC was incorporated by private businessmen, not political subdivisions, it would not be within the definition of "political subdivision" as set forth in the Ethics Law. Therefore, its employees would not be within the definition of "public employee" set forth in the Ethics Law, because that definition specifically includes individuals employed by the Commonwealth of Pennsylvania or by political subdivisions. The definition of "public official" is somewhat broader, the significant portion of which includes persons elected by the public or elected or appointed by a governmental body. The definition of "governmental body" includes, . any agency performing a governmental function." 65 P.S. 5402. We have already determined that the exercise of power to exclude applicants from governmental programs is the performance of a governmental function. See, Abrahamson, Opinion 92 -004. However, we need not decide whether CCDC is an "agency." This is because members of CCDC are not appointed. Rather, those interested in becoming members of CCDC submit applications for membership to CCDC's Board of Directors for approval. (By -Laws Article IV, Section I). Therefore, members of CCDC would not be within the definition of "public official," because that definition only includes persons who are elected or appointed. LEHIGH'S ECONOMIC ADVANCEMENT PROJECT INC. ( "LEAP ") As with CCDC, LEAP would not be within the definition of political subdivision, as it is clearly not within the initial portion of that definition and also is not an entity or body organized by other political subdivisions. Thus, as was the case with CCDC, its employees would not be within the definition of "public employee" as set forth in the Ethics Law. Also as was the case with CCDC, members are not appointed. Membership of LEAP is automatic for its General Counsel and for members of the Industrial Development Corporation of Lehigh County. (By -Laws, Article IV, Section I). Although membership in the latter corporation is open to the County of Lehigh and municipalities, as well as persons, corporations, partnerships, organizations, or groups, as was the case with CCDC, members are not appointed but rather apply for membership. Thus, as was the case with CCDC, these individuals are neither elected by the public nor elected or appointed within the meaning of the definition of Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 14 "public official" as set forth in the Ethics Law. Therefore, the members and employees of LEAP would not be considered public officials /public employees required to file Statements of Financial Interests pursuant to the Ethics Law. SMALL ENTERPRISE DEVELOPMENT COMPANY ("SEDCO ") As with CCDC and LEAP, SEDCO was formed by private business people and therefore would not be within the definition of "political subdivision" as set forth in the Ethics Law. Consequently, its employees would not be public employees within that definition as set forth in the Ethics Law. Also as was the case with CCDC and LEAP, those seeking membership in SEDCO submit an application for membership. Members of SEDCO are not "elected" or "appointed" within the meaning of the definition of "public official" as set forth in the Ethics Law. Therefore, the members and employees of SEDCO would not be public officials /public employees required to file Statements of Financial Interest. NORTHAMPTON COUNTY NEW JOBS CORP. ( "NCNJC ") Based upon the facts which have been submitted, there does not appear to be any basis to conclude that NCNJC -- or the Industrial Development Commission of Northampton County -- were formed by other political subdivisions and therefore, NCNJC would not be a "political subdivision" as that term is defined in the Ethics Law. Consequently, as was the case with CCDC, LEAP, and SEDCO above, the employees of NCNJC would not be within the definition of "public employee" as set forth in the.Ethics Law. However, as to NCNJC, it is specifically noted that the facts submitted as to the status of its incorporators are somewhat sketchy and so the above conclusions are expressly conditioned upon the assumption that these corporations were not incorporated by political subdivisions. We have not been provided with the By -Laws for NCNJC. However, the submitted facts specially state that Article IV, Section I of those By -Laws limits membership in NCNJC to persons 21 years of age and over who are citizens of the United States residing in Northampton County and who are members of the Industrial Development Commission of Northampton County. The Constitutional and By -Laws for the Industrial Development Commission of Northampton County provide for membership for; all members of the Chambers of Commerce throughout Northampton County; other individuals desiring membership who are 21 years of age or over and are citizens of the United States residing in Northampton County; and "sustaining members," which class of membership is open to individuals, partnerships or corporations who have an extreme interest in the industrial promotion efforts, such as merchants, Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 15 utility companies, trucking companies, architects, contractors and suppliers (Constitution and Sy -Laws, Article II). Those wishing to become members submit applications for membership. Id., Section 3. Thus, neither the members of NCNJC nor the members of the Industrial Development Commission of Northampton County are appointed. Conditioned upon the express assumption set forth herein, the members and employees of NCNJC would not be "public officials " / "public employees" required to file Statements of Financial Interests pursuant to 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. IV. CONCLUSION: As a regional planning commission organized by other political subdivisions, the Northwest Pennsylvania Regional Planning and Development Commission ("Northwest") is a "political subdivision" as defined in the Ethics Law. Northwest's members are appointed and they are "public officials" required to file Statements of Financial Interests pursuant to the Ethics Law. The exclusion for advisory boards which do not spend public funds or otherwise exercise the power of the State or a political subdivision is inapplicable to Northwest. The power to exclude applicants from government loan programs goes beyond a purely advisory function. Those Northwest employees meeting the statutory and regulatory criteria for "public employees" are also required to file Statements of Financial Interests pursuant to the Ethics Law. Members /employees of the Chester County Development Council ( "CCDC "), Lehigh's Economic Advancement Project, Inc. ( "LEAP "), Small Enterprise Development Company ( "SEDCO "), and the Northampton County New Jobs Corp. ( "NCNJC ") are not by virtue of such status "public officials " / "public employees" subject to the filing requirements for Statements of Financial Interests pursuant to 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 Area Loan Organizations Under Capital Loan Fund Act, 95 -006 Page 16 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, Austin N. Lee Vice Chair