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HomeMy WebLinkAbout92-582STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 14, 1992 Ms. Tracey Pontius 92 -582 Bureau of Administration 1326 Strawberry Square Harrisburg, PA 17120 Re: Member, Underground Storage Tank Indemnification Board; Public Official; FIS. Dear Ms. Pontius: This responds to your letter of April 8, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether a Member of the Underground Storage Tank Indemnification Board is to be considered a "public official" as that term is defined in the Public Official and Employee Ethics Law, and therefore, subject to the provisions of that Law including but not limited to the requirements for filing Statements of Financial Interests. Facts: As Director of the Bureau of Administration for the Commonwealth of Pennsylvania Insurance Department, you request an advisory from the State Ethics Commission regarding the applicability-of the provisions of the Ethics Law to the Members of the Underground Storage Tank Indemnification Board. The Underground Storage Tank Indemnification Fund, created by Act 32 of 1989, will make payments beginning fiscal year 1992 -1993 to owners and operators of underground storage tanks who incur liability for taking corrective action or for bodily injury or property damage caused by a sudden or non - sudden release from underground storage tanks. The Fund is administered by a seven member board. The Secretary of the Department of Environmental Resources and the Insurance Commissioner serve as ex- officio members; five members are appointed by the Governor, including three members chosen from specified petroleum associations, one public member unassociated with the petroleum industry and a local government member. Board members are not compensated for their service. Ms. Tracey Pontius May 14, 1992 Page 2 You have submitted a copy of the enabling legislation, Act 32 of 1989, noting that the relevant:- information regarding the Board is contained in Chapter 7. Based upon all of the above, you request an advisory from the State Ethics Commission. Discussion: The question to be answered is whether the powers and duties of the Members of the Underground Storage Tank Indemnification Board ( "Board ") fall within the purview of the definition of "public official" set forth in the Ethics Law and Regulations of the Commission. "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 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. The regulations of the State Ethics Commission similarly define the term "public official" as above and also set forth that the term includes any individual: Section 1.1 Definitions Public officials - -- An elected or appointed official in the executive, legislative or judicial branch of the government of the Commonwealth or its political subdivisions. The terms does not include "a member of an advisory board who has no authority to spend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or a political subdivision thereof. (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The bady will be deemed to have the 'power to expend funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds Ms. Tracey Pontius May 14, 1992 Page 3 Si Pa. Code S1.1: 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 effect on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the gtate or a political subdivision if one of the following exists: ,II) 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. we must review the iquelstleon /00 Iptisson't ender these provisions Ms. Tracey Pontius May 14, 1992 Page 4 of the statute and the regulations of the Commission in light of the duties and responsibilities of the Board as set forth in Act 32 of 1989. Our inquiry necessarily focuses on the position itself and not on the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying a position may carry out those functions. See Philips v. State Ethics Commission, 79 Pa. Cmwlth. 491, 470 A. 2d 659 (1984); Mummau v. Ranck. 531 Fed. Supp. 402 (E.D. Pa. 1982). Also, in reviewing your question, the Commonwealth Court in its ruling in Phillips, supra, at page 661, directs us to construe coverage of the Ethics Law broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Law should be narrowly construed. Based upon this directive and reviewing the _definition of "public official" in the statute and the regulations and opinions of this Commission, in light of the duties and responsibilities of the Board, the necessary conclusion is that Members of the Underground Storage Tank Indemnification Board are "public officials" subject to the financial reporting and disclosure requirements of the Ethics Law. Pursuant to Section 705 of Act 32 of 1989, the Board has extensive powers and duties including but not limited to the following. The Board establishes• procedures by which owners and operators may make claims for costs for taking corrective action as well as for liability due to bodily injury and property damage caused by releases from underground storage tanks. Eligible claims are to be paid upon receipt of the information required under the Board's promulgated regulations, and the Board by regulation may also establish a system for prioritizing claims. Claims are subject to a deductible amount which the Board sets annually. Additionally, the Board, by regulation, establishes fees to be paid by owners or operators of underground storage tanks, which fees are to provide an amount sufficient to pay outstanding and anticipated claims against the Underground. Storage Tank Indemnification Fund as well as all other financial requirements of the Board. The Board has the power to assess a penalty of 5% of the amount due against any person who fails or refuses to timely pay such a fee, with additional penalties accruing monthly should such fees remain unpaid. The Board has the power to make contracts and to execute instruments necessary or convenient for carrying on its business; to make by -laws and to adopt, amend and repeal rules, regulations and guidelines; to sue or be sued concerning claims arising as a result of a release from an underground storage tank and to complain and defend in all courts; and to conduct examinations and investigations and take testimony under oath or affirmation on any matter necessary to the determination of approval or disapproval of any claim. Section 705, Act 32 of 1989, 35 P.S. S6021.705. These activities clearly fall within the definition of "public Ms. Tracey Pontias May 14, 1992 Page 5 official" as contained in the Ethics, Law and regulations of the Commission. Under these, c.rCumstaxces and given the powers, duties and responsibilities o Members of the Underground Storage Tank Indemnification Board as outlined above, we must conclude that each Member of the Board is a "public official." Conclusion: Each Member of the Underground Storage Tank Indemnification Board is to be considered a "public official" as that term is defined in the Public Official and Employee Ethics Law, and therefore, Members of the Underground Storage Tank Indemnification Board are subject to the provisions of the Ethics Law. Accordingly, each Member of the Underground Storage Tank Indemnification Board must file a Statement of Financial Interests for each year in which the Member holds the position outlined above and for the year following termination of this service. Any Member of the Underground Storage Tank Indemnification Board who has not already done so must file a Statement of Financial. Interests within 15 days of this Advice. This Statement of Financial Interests would report information of the prior calendar year. 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 requestor 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 available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. Vincent . pop Chief Counsel ; ?