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Home My WebLink About94-522 UpdegraffSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783.1 610 ADVICE OF COUNSEL March 8, 1994 Jerry L. Updegraff Vice President for University Advancement Office of University Advancement Lock Haven University Lock Haven, PA 17745 94 -522 Re: Conflict, Public Employee /Official, Lock Haven University Foundation, Members of Foundation Board of Directors. Dear Mr. Updegraff: This responds to your letter of February 7, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether various individuals such as University employees, University Trustees, Commonwealth employees, Representatives, District Attorneys and Judges, may serve as members of the University Foundation Board of Directors. Facts: You are Vice President for University Advancement at Lock Haven University (University). At a recent meeting of the Executive Committee of the Lock Haven University Foundation (Foundation), members were informed that the Executive Director of the foundation could not be a University employee because certain functions`she performs would violate the State Adverse Interest Law. During a general discussion of the situation; it was decided that you would seek the advice of the State Ethics Commission regarding the membership of Foundation Board of Directors. You have submitted a copy of the Foundation by -laws; which are incorporated herein by reference. Also, pursuant to a telephle conference with Assistant Counsel, you provided additional information. You stated that the Foundation is created pursuant to Section 5O1(d)(3) of the Internal Revenue Code as a not - for -- profit corporation with a stated purpose of providing behefita for the University. The Foundation is registered with the Corporration Bureau of the Pennsylvania Department of State, It is a separate and di t inct entity from the University. The Foundation owns propett f *Rich it leases to the Updegraff, Jerry L., 94-522 March 8, 1994 Page 2 University. After Setag the differences between stems types of foundations, you ddY1811 that private- foundations are similar to family foiindatio6.1 1:41dit, are depositOries for a single or a limited nu of ifidiVidual cOintribatOrs, Public foundations, including the tedk Haven UniVersity Foundation, obtain resources from the pi1i dt Ito. Contributions are received from alumni, SUsilVesid& &Ad friends a the Univerity. While some public fou4id&tione dOcept love • 'tal findang, you indicated that the Loc itaVen tiniVeitSity foundation does not. Based Ultion the above, Wu request an advisory from the State EthidSCOlitilteeion as to 'whether the following individuals may serve as a Membet of the fOundatiOn'S Board of Directors: Loft AAVen Oniversity Conduct of Trustee Member Lodes M&Ven UniVefeity emplOyee fiefintylVani& St&te Representative dl*fiten teiiftty Court of COmmon Pleas dlinton County District Attorney tenntylvana Department of Commerce employee DiedUedidni Th Milry question to be answered is whether indiVidUalet in their capacity as Members of the Board of Directors of the keUftd&tiOn are tO be considered "public officials" as that tee ih defined in the State Ethics Law: settien_lx_aelinitions 4 Public Official." Any person elected by • the public ot 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 - othervise eltercist the power of the State or ahy political subdivision thereof. gt 1?).tt t40. th feNti!Wihg this question t the Commonwealth Court in its ftith4 kbellipth....21.tage_ithi.ca_Conunission, 79 Pa.Commw. 491, VIO AAtt tt 41 t pt 681, directs the Commission to CohstEd% tebvetate eit the Ethics ktt broadly, rather than narrowly, a ebtkvbketIyi. ditecte that imcolusionis from the Ethics Act should h&VIC*Iy ttattilketh Isteed upi this directive and reviewing the fAtihOiesh bt offitita* in the statute and the regulations aka obihibnis a th it COMMiSSIOn, in light of the structure and Updegraff, Jerry L., 94 -522 �`' r .., ._ March 8, 1994 Page 3 function of the Foundation as per the by -laws which were submitted and the telephone conference with this office, it must be concluded that Members of the Foundation's Board of Directors are not "public officials " defined by the Ethics Law. Even though these individuals, as Members of the Board of Directors of the Foundation, are not public officials as that term is defined under the Ethics Law, they are subject to Section 3(b) and 3(c) of the Ethics Law which applies to everyone. Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall Offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the'understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. This advisory only addresses the Ethics Law as it relates to the individuals in their role as Members of the Board of Directors of the Foundation. Specifically not addressed is the applicability of the Ethics Law-as it relates to those individuals in their other respective positions. Should any of those individuals desire an advisory as to how this matter affects them and how the Ethics Law would be applied to them in their other positions, such should be specifically requested from this Commission. Lastly, 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, including the State Adverse Interest Law, other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As a Member of the Board of Directors of the Lock Haven University Foundation, the members are not to be considered public officials as defined by the Ethics Law. Segtl.on 3(b) and 3(c) are applicable, however, as these provision* apply to everyone. Lastly, this advisory only addresses the Ethics Law as it relates to the individuals in their position as Members of the Board of Directors of the Foundation. Pursuant to Section 7(11), this 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, providing the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made av4ilabie as updegraff, Jerry L., 94x-5 March 8, 1994 Page 4 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 i formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually rtceiveld at the Commission within fifteen (15) 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 mall, delivery service, or by FAX transmission (717- 787 - 0806). - ncerely, Yincen • Kopko Chief Counsel