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HomeMy WebLinkAbout21-526 StoverPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL May 14, 2021 To the Requester: Jeffrey W. Stover, Esquire Dear Attorney Stover: 21-526 This responds to your correspondence dated April 19, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission") seeking guidance as to the requirement to file a Statement of Financial Interests for Members of the Halfmoon Township, Centre County, Open Space Preservation Board (OSPB). The issue(s) for which you seek guidance have been summarized below: Issues: 1). Are Members of the Halfmoon Township, Centre County, Open Space Preservation Board (OSPB) "Public Officials" as defined by the Public Official and Employee Ethics Act ("Ethics Act''), 65 Pa.C.S. § 1101 et seq.? Brief Answer: NO. Upon review of the submitted facts, Member of the Halfmoon Township, Centre County, Open Space Preservation Board (OSPB) possess no authority to expend public funds or to otherwise exercise the power of the State or any political subdivision, and as such is an "advisory board." "Advisory board" Members are not included within the Ethics Act definition of "Public Official." 2). Would a failure to file a Statement of Financial Interests by a Member of the Halfmoon Township, Centre County, Open Space Preservation Board (OSPB) be a violation of Section 1104 (a) of the Ethics Act? Brief Answer: NO. In as much as Members of the Halfmoon Township, Centre County, Open Space Preservation Board (OSPB) are members of an "advisory board" the State Stover, 21-526 May 14, 2021 Page 2 Ethics Commission does not possess jurisdiction to require members of "advisory boards" to file a Statement of Financial Interests. Facts: You request an advisory from the Commission regarding the above questions based upon the following submitted facts, that may be fairly summarized as follows: You serve as the Solicitor for Halfmoon Township, Centre County. On May 22, 2003, the Township enacted Ordinance No. 2003-02, which addressed Open Space Preservation within the Township and established the Halfmoon Township Open Space Preservation Board (OSPB). Members of the Open Space Preservation Board are appointed by the Township Board of Supervisors. In submitting your request, you have included a copy of Ordinance No. 2003-02 which has been incorporated herein by reference. Pursuant Section 163-3(A)(1) of Ordinance No. 2003-02, the Open Space Preservation Board "shall be advisory to the Board of Supervisors" and "shall make recommendations" regarding the implementation of the Township's Opens Space Preservation program. The preceding concludes the facts that have been submitted for consideration. 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 submitted. It is the burden of the requester to truthfully disclose all 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 truthfully disclosed all the material facts. Question 1: Definition of "Public Official" 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 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: Stover, 21-526 May 14, 2021 Page 3 (1) 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: (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) 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. Stover, 21-526 May 14, 2021 Page 4 (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. In applying the definition of "public official" and the related regulatory criteria in the instant matter, the necessary conclusion is that Members of the Halfmoon Township, Centre County, Open Space Preservation Board (OSPB) are not to be considered a "public official" as that term is defined in the Ethics Act. This conclusion is based upon the fact that the Open Space Preservation Board is a recommending board that makes non -binding recommendations to the Halfmoon Township Board of Supervisors.1 Question 2: Statement of Financial Interests Filing Requirements Any governmental body may adopt requirements to supplement the Public Official and Employee Ethics Act (Ethics Act)(Act)(65 Pa.C.S. §1101 et seq.), provided that no such requirements shall in any way be less restrictive than those imposed by the Act. Section 1111 of the Ethics Act provides: Any governmental body may adopt requirements to supplement this chapter, provided that no such requirements shall in any way be less restrictive than the chapter. 65 Pa.C.S. §II11. As such, Section 1111 expressly permits a governmental body, such as the Board of Supervisors for Halfmoon Township, to adopt its own requirements to supplement the requirements of the Ethics Act, as long as such supplemental requirements are not less restrictive than the Ethics Act. Such supplemental requirements could include requirements for filing 1 It is noted that pursuant §163-17 "The OSPB or its designated appointee shall inspect all restricted land within the Township at least annually to determine compliance with the applicable deed of easement. The first inspection shall be completed within one year of the date of sale and shall be included in the annual report of the OSPB following that one-year period." The Regulations of the Commission (51 Pa. Code §11.1 et seq.) state that the ability to conduct "inspections" tend to define an individual as a "Public Employee." In as much as the OSPB's annual report appears to be advisory only, it is determined that the OSPB shall be considered a purely advisory board. In the event the OSPB is granted authority beyond a "purely advisory board," this determination may be altered, and the effect of this advisory may become void or otherwise subject to amendment. Stover, 21-526 May 14, 2021 Page 5 originals or copies of Statement of Financial Interests with the governmental body in excess of the requirements of the Ethics Act. See Santavicca, Advice 07 -587. However, a failure to comport with any supplemental requirement would not constitute a violation of the Ethics Act, as same would be outside the jurisdiction of the Ethics Act and the authority of the Ethics Commission to enforce. An illustration of this is found in Saxion, Advice 80-539. In Saxion, the Commission, through Chief Counsel, advised that by failing to file a Statement of Financial Interests as directed by the Township Supervisors, "Mrs. Saxion in no way violated any aspect of the State Ethics Act, and was not required under State Law to file a Statement of Financial Interests with the State Ethics Commission or with the township." Id. at 4. Although Saxion was not in violation of the Ethics, Chief Counsel further confirmed that "[a] township is free to adopt their own ethical standards which may be more restrictive than the State Ethics Act. Id. The question of what consequence or sanction may be imposed for a failure to file a Statement of Financial Interests with Halfmoon Township as a condition of Membership on the Halfmoon Township, Centre County, Open Space Preservation Board (OSPB) or through enactment of supplemental Code of Conduct, is beyond the scope of this advisory. See Boyer, Advice 06-542. However, to the extent that a governing body would enact a supplemental requirement, such as those permitted pursuant Section 1111, a transgression of same would not be a violation of the Pennsylvania Public Official and Employee Ethics Act (65 Pa.C.S. § 1101 et seq.) and as such the State Ethics Commission would have no jurisdiction to advise, opine, investigate, or enforce same. Conclusion: Members of the Halfmoon Township, Centre County, Open Space Preservation Board (OSPB) are not to be considered a "public official" as that term is defined by the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C. S. § 1101 et seq. Accordingly, in that capacity, Members are not subject to the disclosure requirements of the Ethics Act and are not required to file Statements of Financial Interests pursuant the State Ethics Act. To the extent that Halfmoon Township requires the filing of Statements of Financial Interest and/or otherwise enacts provisions to supplement the Ethics Act, a transgression of same would not be a violation of the State Ethics Act, and the State Ethics Commission does not possess the jurisdiction to advise further on such issues. 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. Stover, 21-526 May 14, 2021 Page 6 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 Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Respectfully, BriLD.J Chief Counsel