HomeMy WebLinkAbout92-645Dear Mr. Crumlish:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
James C. Crumlish, III, Esquire
Elliott, Vanaskie & Riley
Union Meeting Corporate Center V
925 Harvest Drive
Blue Bell, PA 19422
ADVICE OF COUNSEL
December 3, 1992
92 -645
Re: Member; Philadelphia Charter Commission; Public Official; FIS.
This responds to your letters of September 17, 1992, and
November 17, 1992, in which you requested advice from the State
Ethics Commission.
Issue:. Whether a Neither of the Philadelphia Charter Commission,
hereinafter, PCC, would 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 the Ethics Law including
the requirement to file a Statement of Financial Interests.
Facts: As counsel for the Philadelphia Charter Commission (PQC),
you question whether the - activities and functions of a Member of
the PCC fall within the purview of the definition of "public;
official" as that phrase is defined in the State Ethics Law and the
regulations of this Commission. You state that the PCC. has b
empaneled pursuant to the Act of April 21, 1949 (P.L. 665) known as
the "First Class City Home Rule Act," 53 P.S. S13101 et sect., to
independently deliberate and propose to the electors, amendment of
the Philadelphia Home Rule Charter. You state that the Commission
Members themselves are serving as unpaid volunteers and have
engaged paid professional support staff.
You have submitted a copy of the enabling legislation which
created the PCC., designated Ordinance (Bill Na. 47) approved by the
Mayor on June 11, 1922. The said Ordinance provides at Section 1
for the appointmentof a commission to "frame a new Charter for the
City of Philade'Ighia pursuant to the provisions of the First Class
City Home Rule''Act . " . . . "
You have additionally submitted a copy of correspondence dated,
James C. Crumlish, III, Esquire
December 3, 1992
Page 2
November 5, 1992, from Robert Johnson, Director of Staff of the PCC
to you, which correspondence is incorporated herein by rbference.-
The said correspondence explains the basis for funding of PCC
as follows.
The PCC will incur expenses for compensation of Commission
staff and legal counsel, for office equipment and supplies, and for
other reasonably expected expenses of operating the Commission.
The PCC will not be required'to :pay rent. Office space for the
PCC's staff is contributed principally by the law firm of Dechert
Price & Rhoads, one partner -of- which series on the PCC. The firms
and 'companies of other Comm. ss .on me3ntbers will also contribute
meeting space and various su pplies and seiees .
Expenses will be charged to a specially created Charter
Commission account, which will`be` part of t City's general fund.
That special account will be - funded by cohtribtutions from
foundations and , it is hoped,'- sources: To date,
$70,000 has been contributed by two foundations, =ene of which has
pledged an additional $20,000:
In the event that Commission expenses exceed the amount
contributed on the Commission's behalf, tho §e expenBes will also be
Charged to the City's general fund, as authorized by City Council.
The First Class City Home Act, 53 P.8. § i•31U1- 13157, which
governs the creation and operation _ of the PCC, brovides for the
funding Of the Commission as follows:
Section 1345. Compensation to members of
commission and expenses "paid by city 'r`•
Such compensation to the members of the
commission for =their services' as' the city
council of the city shall, by ordinance, deem
proper, the expenses off the -charter
commission, and the cost of publishing,
distributing and adirertising the proposal € w
proposals of the and all
other expenses of the charter commission and
of the city council incurred in connect=ion
with any _proceedi:ngs herei - provided
for, when not otherwise provided for by law,
,shall be paid from the city' areas -ury -and ' the
city council o f, . the city* ' sha UI provide
theref or; .._ u
53.P.S. §1
Mr. Johnson's correspondence confirms that the PCC Members
have agreet ib` serve ,yoiuntarily, 41thou h the'; aforesaid provision
James C. Crumlish, III, Esquire
December 3, 1992
Page 3
would allow them to be compensated.
Based upon all of the above, you request an advisory from the
State Ethics Commission.
Discussion: It is necessary to analyze the duties, functions and
responsibilities of a Member of the PCC in order to determine
whether he or she would be a "public official" pursuant to 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 a Member of the PCC are as set forth
in the First Class City Home Rule Act, 53 P.S. §13101, et seq. The
State Ethics Commission would not have the specific statutory
authority to interpret the said Act. However, it appears from the
face of various provisions of the First Class City Home Rule Act
that such a commission is formed to frame a new charter for city
government, 53 P.S. SS131 13105, while amendments to an existing
charter are proposed either by resolution of the city council or
by a petition presented to the city council signed by not less than
20,000 registered electors of the city. 53 P.S. S13106. Although
proposed amendments to an existing charter appear to require
approval of city council before .beinq submitted to the electors of
the city for approval, 13 P.S. S does not appear to be
any requirement for the approval of city council for a new charter
proposed by a commission. The new Charter proposed by such a
commission is, however, filed'' witfi; City council which has the
responsibility for causing ;tire proposal and related ballot
questions to be printed fo5r: general distribution and to be
published before the election 3 P.S. §13109. A proposed new
charter or proposed amendments' �tc a existing charter are submitted
to the electors for approval or disapproval through the ballot
questions, 53 P.S. §13110, and upon approval by a majority of the
qualified electors, become the law :6f the city. 53 P.S. §13111.
The question to be answered is whether the duties of a Member
of the PCC are encompassed within the term "public official" as
defined 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 of 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.
James C. Cru nli III, Esquire
December 3, 1992
Page 4
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 official - --
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 memberr 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
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
miniinis 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:
(1) 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
governfitent and performs essential governmental
functions,
(In) Y) The governing authority is bowd by
stat.te or ordinance to accept and enforce the
rulings of the body.
James C. Crumlish, III, Esquire
December 3, 1992
Page 5
(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.
51 Pa. Code §1.1.
We must review the question you present under these provisions
of the statute and the regulations of the Commission in light of
the duties and responsibilities as described above. 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 Ethic
Commission, 79 Pa. Cmwlth. .491, 470 A. 2d 659 (1984) ; Mummau v_
Ranck, 531 Fed. Supg :..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 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 set forth above, the necessary conclusion is that
a Member of the PCC is a "public official" subject to the financial
reporting and disclosure requirements of the Ethics Law.
A Member of the PCC is an appointed official. The PCC is not
within the statutory exclusion for advisory boards. Members of the
PCC have the power to frame a new city charter to govern the City,
subject solely to the approval of the qualified electors. These
activities fall within the definition of public official as
contained in the regulations of the Commission. 51 Pa. Code 1.1.
James C. Cruml•ish I I L, Esquire
December 3, 1992
Page 6
Given the duties and responsibilities as outlined above, we must .
conclude that a -MeMber of the PCC is a "public official." See,
Hetrick, Opinion 80-029 (Members of government study commission
appointed under the Home Rule Charter and Optional Plans Law were
deemed by the full State Ethics Commission to be "public officials"
subject to former At 170 of 1978).
Conclusion: A Member of the. Philadelphia Charter Commission
( "PCC ") is to be considered a "public official as defined in the
Ethics Law, and therefore subject to the Ethics Law. Accordingly,
a Member of the PCC Must file a Statement of Financial Interests
for each year in which he holds the position outlined above and for
the year following his termination of this service.
If this has not already been done, a Statement of Financial
interests must be filed 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.
"stick .
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 Co Mission within 15 days of the date of this Advice pursuant
to 51 Pa. Code 52.12.
ncerely,
incent J. `Dopko
Chief Counsel