Loading...
HomeMy WebLinkAbout92-592STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 =1610 ADVICE OF COUNSEL June 1, 1992 Mr. Brian P. Walsh 92 -592 Deputy Secretary for Administration Department of Commerce 238 Main Capitol Building Harrisburg, PA 17120 Re: Commissioner, Governor's Advisory Commission on African American Affairs; Commissioner, Port of Pittsburgh Commission; Public Official; FIS Dear Mr. Walsh: This responds to your letter of April 22, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Commissioners serving on two newly formulated Commissions, the Governor's Advisory Commission on African American Affairs and the Port of Pittsburgh Commission, are to be considered within the definition of "public official" as set forth in the Public Official and Employee Ethics Law, and therefore subject to the provisions of the Ethics Law including but not limited to the requirement to file Statements of Financial Interests. Facts:` As Deputy Secretary for Administration for the Department of Commerce, you request an advisory from the State Ethics Commission regarding the status of Commissioners serving on two newly formulated Commissions which have come under the auspices of the Department of Commerce. You specifically ask whether the Members of these Commissions are public officials under the Public Official and Employee Ethics Law. The first Commission is the Governor's Advisory Commission on African American Affairs. You note that this Council was established by the Governor through Executive Order 1991 -7, a copy of which Executive Order has been submitted and is incorporated herein by reference. The second new organizational entity is the Port of Pittsburgh Commission. You note that this Commission was formulated through legislation, specifically Senate Bill No. 1711 (Session pf 1990, Brian P. Walsh June 1, 1992 Page 2 Printer's: No. 2630) a copy .of which has been submitted and is incorporated herein by reference. You ask that the documentation and enabling legislation governing these Commissions be reviewed for a determination as to how the requirements of the Ethics Law apply to their Members. Discussion: It is necessary to analyze the duties, functions and responsibilities of the Commissioners serving on the above two newly formulated Commissions in order to determine whether they are within the definition of "public official" as set forth in the Ethics Law and the Regulations of the Commission. Philips v. State Ethics Commission, 79 Pa. Commw. Ct. 491, 470 A. 2d 659 (1984). As for the first Commission, the Governor's Advisory Commission on African American Affairs was established as the Commonwealth's advocate agency for its African American citizens. The functions of the Commission include: 1 . Advising the . Governor on policies, procedures, legislation, and regulations which affect the African American community and which will enable the Commonwealth to be responsive to its needs; 2. To develop', review and recommend to the Governor policies to prevent and eradicate racial discrimination in the areas of health and human services, housing, education, employment, business formation and development, public accommodations, - and in contracting . practices and, procedures; To provide appropriate assistance and advice to the Pennsylvania Minority Business Development Authority as may be necessary; 4. To serve as a liaison to federal, ,state, and local agencies to ensure that programs affecting African Americans are effectively utilized ..and .that benefits accrue equitably to members of the African American community; To serve as a resource for community groups on African American issues, programs, sources of funding, and compliance requirements within state government for the benefit and advancement of African Americans; To assist local African American community groups in developing strategies and programs which will expand and enhance the social, cultural, and economic status of the African American community; Brian P. Walsh June 1, 1992 Page 3 7. To work with the Bureau of Affirmative Action /Contract Compliance to strengthen the enforcement of the Commonwealth's anti - discriminatory hiring, retention, and promotion policies; To work with the Governor's Office to promote legislation which ensures the equitable treatment of all citizens of the Commonwealth; and 9. To promote the cultural arts in their various forms within the African American community through coordinated efforts and advocacy. Executive Order 1991 -7 at 1 -2. As for the second Commission, pursuant to Senate Bill No. 1711, the Port of Pittsburgh Commission shall create the Pittsburgh Regional Intermodal Freight Corporation, as a public non- profit corporation to promote intermodal freight opportunities, operations, and facilities, and qualified under Section 501(c)(3) of the Internal Revenue Code of 1986 Senate Bill No 1711 at 52. The numerous purposes of the Commission include but are not limited to: encouraging public and private capital investment along the rivers for .fostering the creation of industrial facilities and industrial parks and promoting the establishment of a "foreign trade zone within the port district; promoting adequate facilities for the handling, storage, care and shipment of freight and passengers to, from and through the port with the purpose of increasing commerce and commercial interests; promoting the development of recreational facilities in the port district; promoting the rivers as highways of commerce to increase freight and passenger commerce; sponsoring, supporting and advising the Intermodal Corporation; accepting gifts, grants, and donations on behalf of said corporation; and disbursing funds for its lawful activities. Senate Bill No. 1711 at S4. The powers and duties of the Commission include but are not limited to the following: 1. The power`to contract and be contracted with and to sue and be sued; 2. The power to improve navigable and nonnavigable areas as regulated by federal or state statute; 3. To enter into with other ports; 4. To enter into agreements with any public utility operating any transportation fatuity wholly or partially within:,. the port area for the joint or exclusive use of propei' ° ty, the establishment of routes over :rights- of=wayi or the establishment of joint rates; Brian P. Walsh June 1, 1992 Page 4 5. The power to acquire, lease and /or transfer property, or any interest therein, necessary or desirable for carrying out the purposes of the Commission and Corporation; 6. To establish for the purpose of planning, coordinating, acquiring, holding, constructing, improving, maintaining and operating, owning and leasing, port facilities and equipment and recreational and commercial properties of significance to the port district as determined by the Commission when no such private operator exists in the port district and when such an operation would not compete with private corporations; 7. To enter into contracts for the use of any Commission or Corporation facility and to fix the amount to be paid therefor; 8. To borrow money, make and issue negotiable notes, bonds, and other evidences of indebtedness or obligations, and to secure the payment of same; ,9. To encumber revenues or receipts of the Commission and Corporation as security for their obligations; 10. To accept gifts, grants, loans or contributions. from federal, state, or local government or other public or private agencies, individuals, partnerships or corporations; 11. To generate revenue to compensate for =all or part of their administrative planning, promotional and other expenses; 12. To disburse funds for their lawful activities and fix salaries and wages of employees; 13. To represent the port district before all-federal, state and local agencies; 14. To deal effectively with regulatory issues and restrictions detrimental to the port, and to promote new regulations and restrictions beneficial to the port; and 15. To initiate or support international trade and to utilize the advantages associated with foreign trade zone 33. ,igg, Senate Bill No. 1711 at S5(6). Exclusions to the powers of the Commission specifically state that the Commission shall not have the power to pledge the credit Brian P. Walsh June 1, 1992 Page 5 or taxing power of the Commonwealth or any political subdivision, and that no obligations of the Commission or Corporation shall be deemed to be obligations of the Commonwealth or any of its political subdivisions. Furthermore, the Commonwealth or any political subdivision shall not - be liable for the payment of principal or interest on obligations of the Commission or Corporation. Senate Bill No. 1711 at 55(B). The. `.question to be answered is whether the duties of the Commissioners serving the above two newly formulated Commissions are - encompassed. =within the term ' "public official" as defined in the Ethics Law and Regulations 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 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 body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of . monies, enter into contracts, invest funds Brian P. Walsh June 1, 1992 Page 6 51 Pa. Code 51.1. 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 State or apolitical 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 (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. The questions which you must be reviewed under Brian P. Walsh June 1, 1992 Page 7 these provisions of the statute and the. regulations of the Commission in light of the duties and responsibilities of the Commissioners serving on the above two newly formulated Commissions as described above. The 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 questions, the Commonwealth Court in its ruling in Phillips, supra, at page 661, directs the Commission to construe ' of the Ethics Act broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Act 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 Commissioners serving on the above Commissions, it must be concluded that Commissioners on the Governor's Advisory Commission on African American Affairs are not within the definition of "public official" as set forth in the Ethics Law, but Commissioners serving on the Port of Pittsburgh Commission are within the definition of "public official" as set forth in the Ethics Law. The above conclusions are based upon the objective review of Executive Order 1991 -7 and Senate Bill No. 1711. A review of Executive Order 1991 -7, pertaining to the Governor's Advisory Commission on African American Affairs, reveals that the Commission is an advisory body which has no authority to . spend public funds (other than perhaps reimbursing personal expenses) or to otherwise exercise the power of the state or a political subdivision thereof. However, it is noted that some language within the Executive Order is ambiguous, and therefore this Advice is conditioned upon the assumption that in performing its duties Such as working with or serving as a liaison to other agencies and in assisting and serving as a resource for community groups, the Commission would not be expending public funds other than reimbursing personal expenses and would not be otherwise exercising the power of the state or a political subdivision thereof. Based upon the above assumption, because Commissioners serving on the Governor's Advisory Commission on African American Affairs would not fall within the classification of the term "public official," they would not be subject to the financial reporting and disclosure requirements of the Ethics Law. Indeed the only provisions of the Ethics Law which would apply to such Commissioners would be Sections 3(b) and 3(c) of the Ethics Law which apply to everyone regardless of status as -a public official /public employee. For informational purposes, you are Arian P. Walsh June 1, 1992 Page 8 advised that those provisions 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. On the other hand, in considering the powers and duties of Members of the Port of Pittsburgh Commission, the necessary conclusion is that these Commissioners are within the definition of "public official" and are therefore subject to the provisions of the Ethics Law including but not limited to the financial reporting and disclosure requirements. The Port of Pittsburgh Commission exercises basic powers of government and performs_gessential governmental functions and in so doing makes independent decisions which are effective without approval of any other governmental body. The substantial powers of the Commission affect transportation, and specifically permit the Commission to improve navigable and non - navigable areas as regulated by federal or state statute; to establish port facilities and equipment; to initiate or support international trade; to promote regulations and restrictions beneficial to the port; to issue bonds and other evidences of indebtedness; and to generate revenue to compensate for all or part of the administrative planning, promotional and other expenses. These specific examples, as well as other powers and duties of the Commission, clearly establish that the duties and responsibilities of Commissioners serving on the Port of Pittsburgh Commission bring them within the definition of "public official" as set forth in the Ethics Law. Accordingly, Commissioners serving on the Port of Pittsburgh Commission are subject to the provisions of the Ethics Law, including but not limited to the requirement that each Commissioner file a Statement of Financial Interests for each year in which the Commissioner holds the aforesaid position and for the year following termination of this service. Conclusion: A Commissioner serving on the Governor's Advisory Commission on African American Affairs is not to be considered a "public official" as defined in the Ethics Law. Accordingly, Commissioners serving on the Governor's Advisory Commission on African American Affairs would not be subject to the reporting and disclosure requirements of the Ethics Law and need not file a Statement of Financial Interests. Sections 3(b) and 3(c) of the Ethics Law are applicable to everyone. A Commissioner serving on the Port of Pittsburgh Commission is to be considered a "public official" as defined in the Ethics Law. Accordingly, Commissioners serving on the Port of Pittsburgh Commission would be subject to the provisions of Ethics Law, including but not limited to the requirement to file a Statement of Financial Interests for each year in which the aforesaid position is held and for the year following termination of this service. Lastly, the propriety of Brian P. Walsh June 1, 1992 Page 9 the proposed conduct has only been addressed under the Ethics Law. 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. 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 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 52.12. Sincerely, aph . Vincent J. Dopko Chief Counsel