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HomeMy WebLinkAbout21-001 Hursh44 PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIME: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBsrm www..elh[ps,pg.gov 613 NORTH STREET, ROOM 309 HARRISBUR G, PA 17120-0400 OPINION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma Michael A. Schwartz, Shelley Y. Simms DATE DECIDED: 9/15/21 DATE MAILED: 9/16/21 To the Requester: Yvonne Llewellyn Hursh Counsel Joint State Government Commission Room 108-FinanceBuilding Harrisburg, PA 17120 Dear Attorney Hursh: This Opinion is issued in response to your letter dated June 7, 2021, by which you requested a ruling from the Pennsylvania State Ethics Commission ("Commission") concerning the issue identified below. 1. ISSUE: Whether a Member of the Pennsylvania Election Law Advisory Board (ELAB) would be considered a "public official" subject to the Public Official and Employee Ethics Act (the "Ethics Act"), 65 Pa.C.S. § 1101 et�aN., and the Regulations of the State Ethics Commission, 51 Pa. Code § I LI et seq., and particularly, the requirements for filing Statements of Financial Interests. Hursh, 21-001 September 16, 2021 Page 2 II. FACTUAL BASIS FOR DETERMINATION: You request an Opinion from this Commission as to whether a Member of the Pennsylvania Election Law Advisory Board (FLAB) would be considered a "public official" subject to the Public Official and Employee Ethics Act (the "Ethics Act"), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and particularly, the requirements for filing Statements of Financial Interests. Act 12 of 2020 (25 Pa. Stat. Ann. §3150.22) created the Pennsylvania Election Law Advisory Board (FLAB) within the Joint State Government Commission (JSGC). The Board is composed of appointees from the General Assembly leadership and eighteen members appointed by Governor Wolf. Members serve in an advisory capacity, receive no compensation, but are entitled to reimbursement of reasonable expenses. Several of the gubernatorial appointees have contacted staff at the Joint State Government Commission inquiring how they should respond to requests from the Office of Administration notifying them that they have failed to file required financial disclosures (Statement of Financial Interests). Within your letter requesting a ruling from the Commission, you acknowledge that Act 12 reads, in pertinent part: Section 1302-E(f) Transparency and ethics. — The board shall be subject to the following laws: (1) The act of July 19, 1957 (P.L.1017, No.451), known as the State Adverse Interest Act. (2) The act of October 4, 1978 (P.L.883, No.170), referred to as the Public Official and Employee Ethics Law. (3) The act of February 14, 2008 (P.L.6, No.3), known as the Right -to -Know Law. (4) 65 Pa.C.S. Ch. 7 (relating to open meetings). 25 Pa. Stat. Ann. § 3150.22 (Act 2020-12 (S.B. 422)). You suggest that the plain meaning of this provision is "clearly to require the board to follow the Commonwealth's standard transparency and ethic laws, as applied to volunteer members of advisory boards and commissions" and further note that the Public Official and Employee Ethics Act (65 Pa.C.S.§ 1101 et seq.) exempts "members of advisory boards that have no authority to expend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or any political subdivision thereof," from the requirement to file an annual Statement of Financial Interest. Additionally, you submit both the Governor's Code of Conduct, Executive Order 1980-18 (as amended) and Management Directive 205.10 Amended, Financial Disclosures Required by the Public Official and Employee Ethics Act, 65 Pa.C.S. §§ 1101-1113, similarly exempt non- Hursh, 2 1 -001 September 16, 2021 Page 3 paid advisory board members from the financial disclosure filing requirements. You close by stating that some of the FLAB Members also hold paid positions in local political subdivisions, and you do not claim that those Members are exempt from the filing requirements related to their local positions, but do believe that in their capacity as Members of the FLAB they are not required to file Statement of Financial Interests with JSGC nor is JSGC required to maintain such financial disclosures. By letter dated August 11, 2021, you were notified of the date, time and location of the public meeting at which your request would be considered. III. DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), Opinions are issued to the requester based upon the facts that the requester has submitted. In issuing a ruling based upon the facts that the requester has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An Opinion only affords a defense to the extent the requester has truthfully disclosed all material facts. The term "public official" is defined in the Ethics Act as follows: § 1102. Definitions "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 this Commonwealth or any political subdivision thereof, provided that it shall not include members ofadviso1y. boards that have no authority to expend public funds other than reimbursement for personal ex ense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102 (emphasis added). The first portion of the Ethics Act's definition of the term "public official" provides that a public official is a "person" (defined to include, inter alia, an individual, business, corporation or firm, 65 Pa.C.S. § 1102) which is: (1) elected by the public; (2) elected or appointed by a governmental body; or (3) an appointed official in the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02-007. When the first portion of the definition is met, status as a public official subject to the Ethics Act is established, unless the exception for members of purely advisory boards lacking authority to expend public funds, other than reimbursement for personal expense, is applicable. Eiben, Opinion 04-002. Hursh, 21-001 September 16, 2021 Page 4 The fact that Members of the ELAB are appointed by the General Assembly and the Governor satisfies the first portion of the definition. It is acknowledged that the definition of "public official" excludes "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." A review of the duties and responsibilities of the ELAB tend to support and confirm its "advisory" status. Specifically, Act 2020-12 reads in pertinent part: (c) Duties. The board shall have the following duties: (1) Study this act and identify statutory language to repeal, modify or update. (2) Collaborate with other agencies and political subdivisions of the Commonwealth to study election -related issues. (3) Study the development of new election technology and voting machines. (4) Evaluate and make recommendations on: (i) improving the electoral process in this Commonwealth by amending this act or through regulations promulgated by the Department of State; and (ii) implementing best practices identified to ensure the integrity and efficiency of the electoral process in this Commonwealth. (5) By the end of each fiscal year, publish extensive and detailed findings on the Joint State Government Commission's publicly accessible Internet website and make them available in electronic format to the Office of the Governor and members of the General Assembly. 25 Pa. Stat. Ann. § 3150.22. The foregoing does not, however, end the Commission's analysis of the question. In rendering an Opinion, the Commission would be remiss if it did not consider the Rules of Statutory Construction and its effect on the application of the exclusionary language contained within the definition of "public official." To that extent: When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. Hursh, 2 1 -001 September 16, 2021 Page 5 1 Pa. Cons. Stat. Ann. § 1921. A plain reading of Act 2020-12 clearly states that the FLAB shall be subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. §1101 et sea.: Section 1302-E(o Transparency and ethics. The board shall be subject to the following laws: (2) The act of October 4, 1978 (P.L.883, No.170), referred to as the Public Official and Employee Ethics Law. ► 25 Pa. Stat. Ann. § 3150.22 (Act 2020-12 (S.B. 422)). Rules of Statutory Construction state that when the "words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa. Cons. Stat. Ann. § 1921. A plain reading of 2020 Act 12 unequivocally confirms that the Legislature intended for Members of the ELAB to be subject to the Ethics Act, even as an "advisory board." In as much as "advisory boards" are otherwise not subject to the jurisdiction of the Public Official and Employee Ethics Act, the intentional inclusion of same within 2020 Act 12 is clearly a mandate that the ELAB be bound by the provisions of the Ethics Act, The Rules of Statutory Construction provide additional guidance, stating that: In ascertaining the intention of the General Assembly in the enactment of a statute, the following presumptions, among others, may be used; (1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable. (2) That the General Assembly intends the entire statute to be effective and certain. (3) That the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth. 1 It is submitted that a typographical error occurred concerning 2020 Act 12 citing to "The act of October 4, 1978 (P.L.883, No.170)" as opposed to "The Pennsylvania Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et SeMc . (Act 1998-93 (S.B. 254), P.L. 729, § 1, approved Oct. 15, 1998)". Regardless, the provision remains effective pursuant 1 Pa.C.S. §1937. Hursh, 21-001 September 16, 2021 Page 6 (4) That when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language. (5) That the General Assembly intends to favor the public interest as against any private interest. 1 Pa.C.S. § 1922. The letter requesting this Opinion suggests that "the [ELAB is to] follow the Commonwealth's standard transparency and ethic laws, as applied to volunteer members of advisory boards and commissions" but be excluded from filing Statement of Financial Interests; such an application would result in an absurd and unreasonable result. The filing of Statements of Financial Interests promotes transparency and openness in government, clearly the intent of the Legislature. To exempt the filing requirement, when the entirety of the Ethics Act would otherwise apply, is absurd and unreasonable. Additionally, subjecting ELAB Members to only the restricted activities portion of the Ethics Act and exempting them from the filing requirements, results in only a portion of the Ethics Act being applied. It is the intent of the Legislature that an entire statute be effective and certain. By specifying ELAB Members shall be subject to the Ethics Act, the Legislature intended they be subject to the entirety of the Ethics Act - including the requirement to file Statement of Financial Interests. Lastly, the Legislature intends "to favor the public interest as against any private interest." 1 Pa.C.S. § 1922. Coverage under the Ethics Act is to be construed broadly and exclusions under the Ethics Act are to be construed narrowly. See, Quaglia v. State Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS 8 (Pa. Cmwlth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (2010); Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984). Application of the entire Ethics Act - particularly when directed by statute —only furthers the purpose of the Ethics Act, "to strengthen the faith and confidence of the people of this Commonwealth in their government. " 65 Pa.C.S.§1101.1. IV. CONCLUSION: Based upon the above, it is the Opinion of this Commission that Members of the Pennsylvania Election Law Advisory Board (ELAB) are "public officials" subject to the provisions of the Ethics Act and the Regulations of this Commission, and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. The propriety of the proposed course of conduct has only been addressed under the Ethics Act. 1 jju , 21-001 September 16, 2021 Page 7 Pursuant to Section 1107(10) of the Ethics Act, 65 Pa.C.S. § 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. By the Commission, p6e-" Nicholas A. Colafeil Chair