HomeMy WebLinkAbout92-596Dear Colonel Holt:
STATE. ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
June 12, 1992
LTC Joseph W. Holt, Director
Bureau of Administrative Services
Building S -0 -47 Fort Indiantown Gap
Annville, PA 17003 -5002
92 -596
Re: Chairman; Commissioner; Pennsylvania Veterans' Memorial
Commission; Public Official; FIS.
This responds to your letter of April 29, 1992, in which you
requested advice from the State Ethics Commission.
Issue: Whether the Chairman and other Governor - appointed
Commissioners serving on the Pennsylvania Veterans' Memorial
Commission are to be considered "public officials" as that term is
defined 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 Director of the Bureau of Administrative Services with
the Commonwealth of Pennsylvania, Department of Military Affairs,
you request an advisory from the State Ethics Commission regarding
whether the Chairman and other Governor- appointed Members of the
Pennsylvania Veterans' Memorial Commission would be required to
file financial disclosures pursuant to the Ethics Law. You have
enclosed a copy of the enabling legislation for the Commission,
specifically the Official Advance Copy of Act 60 of 1988, which is
incorporated herein by reference.
You state that it is your opinion that the Chairman of the
Pennsylvania Veterans' Memorial Commission, Mr. Raymond C. Mullin,
should be considered to be subject to the requirement to comply
with financial disclosure provisions since he is appointed by the
Governor and is responsible for the expenditure of Commission
funds. As for the other Commission Members, several are also
appointed by the Governor. However, you have been advised that
these Members are not authorized to expend funds. None of the
Members are compensated for their services, but treyel expenses
ITC Joseph W. Holt, 'Director
:June 12, 1992
Page 2
related to Commission business are reimbursable.
You conclude by stating your opinion that the Chairman of the
Pennsylvania Veterans' Memorial Commission should be required to
file financial disclosure statements, but that the other Members_ of
the Commission in question should not be required to do so.
Discussion: It is necessary to analyze the duties, functions and
responsibilities of Chairman Mullin and the other Commissioners as
to whom you inquire 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).
The powers or duties of the Commissioners are set forth in
Section 1904 of Act 60 of 1988 which provides as follows:
§1904. Duties of commission.
In addition to other powers conferred by
this chapter, the commission shall have the
power:
(1) To erect a physical monument to
be located on the grounds of the
Indiantown Gap National Cemetery honoring
Pennsylvania veterans.
(2) To receive for and on behalf of
the Commonwealth, monetary gifts or
bequests which shall be deposited in the'
fund.
(3) To accept grants.and subsidies
from and enter into agreements or other
transactions . with any Federal agency or
agency of the Commonwealth or other
entity.
(4) To enter into contracts and to
execute all instruments necessary or
convenient for carrying on its operation.
(5) To issue appropriate
regulations for the implementation of
this chapter.
(6) To do all other things
necessary or convenient to carry out the
powers granted to it by this chapter.
LTC Joseph W. Holt, Dir "ector
June 12, 1992
Page 3
51904, Act 60 of 1988 (Official Advance Copy).
It is initially noted that the above duties of the
Cdimnissioners on the Pennsylvania Veterans' Memorial
Cbmmission =not appear to be distinguished as to particular
Members Commission, but are generally applicable to all
serving on the Commission. However, because you have limited your
inquiry to Chairman Mullin and the other Governor - appointed
Commissioners, this .Advice may only consider whether those
particular individuals are within the term "public official"' as
defined in the Ethics Law and Regulations of the Commission. The
Ethics Law defines the term as follows:
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
"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:
I,TC Joseph W. Holt, Director
June 12, 1992
Page 4
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 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 apolitical subdivision.
51 Pa. Code §1.1.
We must review the question you present under these .provisions
LTC Joseph W. Holt, Director
June 12, 1992
Page 5
of the statute and the regulations of this Commission in light of
the duties and responsibilities of the Chairman other Governor -
appointed commissioners in question. Our inquiry necessarily
focuses on the job 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 Act broadly, rather than narrowly, and
conversely, directs that•exolusions 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 those serving on the Pennsylvania Veterans'
Memorial Commission, we must conclude that Chairman Mullin and the
other Governor - appointed ..Commissioners of the Pennsylvania
Veterans' Memorial Commission are "public officials" subject to the
financial reporting and disclosure requirements of the Ethics Law.
As set .forth in the enabling legislation, the Chairman and the
other Commissioners - including but not limited to those appointed
by the Governor - have the power to erect a physical monument at
the Indiantown Gap National Cemetery, honoring Pennsylvania
veterans; to receive for and on behalf of the Commonwealth monetary
gifts or requests, grants and subsidies; to enter into contracts or
other transactions with governmental agencies or other entities;
and to do all other things which would be necessary or convenient
to carry out-the powers granted to the Commission under Chapter 19
of the Act.. -These activities fall within the definition of "public
official" as contained in the regulations of the Commission. 51
Pa. Code 1.1. Under these circumstances and given the duties and
responsibilities of the Commissioners as outlined above, the
necessary conclusion is that Chairman Mullin and the Governor -
appointed Commissioners of the Pennsylvania Veterans' Memorial
Commission are "public officials." In light of these duties and
responsibilities, the_submitted fact that Members other than the
Chairman are unauthorized to expend funds would not change the
above determination.
Conclusion: The Chairman and other Governor- appointed
Commissioners serving on the Pennsylvania Veterans' Memorial
Commission are to be considered "public officials." Accordingly,
pursuant to the Ethics Law, each of these individuals must file a
Statement of Financial Interests for each year in which the
position is held and the year following termination of this
service. If they have not already done so, their Statements of
LTC Joseph W. Holt, Director
June 12, 1992
Page 6
Financial Interests must be filed within fifteen (15) days of this
Advice. The Statement of Financial Interests would report
information of the prior calendar year. Finally, it is noted that
for purposes of the Ethics Law, there is no basis for
distinguishing these individuals from the. other Commissioners on
the Pennsylvania Veterans' Memorial Commission other than the fact
the inquiry was limited to those appointed by the Governor.
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 §2.12.
v\
incent . Dopko
Chief Counsel