HomeMy WebLinkAbout23-510 HollingPHONE: 717-783-1610
TOLL FREE: 1-800-932-0936
To the Requester:
Ernie Holling
Dear Mr. Holling:
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.pa.gov
ADVICE OF COUNSEL
February 6, 2023
23-510
This responds to your email received January 20, 2023, by which you requested an advisory
from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue
presented below:
Issue:
Whether in your capacity as chairman of the America250PA Chester County Commission
(which commission is also known — and hereinafter referred to — as America250PA), you
would be considered a "public official" subject to the Public Official and Employee Ethics
Act ("Ethics Act"), 65 Pa.C.S. § 1101 et s�Mc., and the Regulations of the State Ethics
Commission, 51 Pa. Code § 11.1 et. S�ce ., and particularly, the requirements for filing
Statements of Financial Interests.
Brief Answer: To the extent that America250PA is purely an advisory board with 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, you would
not be considered a "public official" subject to the Ethics Act and the Regulations of the
State Ethics Commission, including the requirements for filing Statements of Financial
Interests.
Facts:
You request an advisory from the Commission based upon submitted facts, the material
portion of which may be fairly summarized as follows.
Hollins. 23-510
February 6, 2023
Page 2
You are chairman of the America250PA Chester County Commission ("America250PA"),
an entity created by the Chester County Board of Commissioners pursuant to resolution number
47-21, adopted on November 10, 2021. The purpose of America250PA is to help build the
foundation for celebrating the nation's 250'h anniversary and to prepare specific steps for
celebrating the nation's heritage. America250PA consists of 29 members. Each member is
appointed by the Chester County Board of Commissioners.
America250PA has the following duties:
1. Gather input and information from the general public, municipalities, and
other partners about the county's history;
2. Assess historic sites and recommend enhancements for improving capacity;
3. Develop and implement an interpretive framework for historic tourism;
4. Prepare and implement county -wide marketing;
5. Tailor a civic based educational curriculum for Chester County schools;
6. Organize and sponsor ongoing programs and events for the 2501h
celebration; and
7. Identify financial support for the 2501h celebration and related tourism
efforts.
Based upon the above submitted facts, you ask whether in your capacity as chairman of
Americal250PA, you would be considered a "public official" subject to the Ethics Act and the
Regulations of the State Ethics Commission, and particularly, the requirements for filing
Statements of Financial Interests.
Discussion:
Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10),
(11), advisories are issued to the requester based upon the facts that the requester has submitted.
In issuing the advisory based upon the facts that the requester has submitted, the 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 advisory 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 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.
65 Pa.C.S. § 1102.
Hollins. 23-510
February 6, 2023
Page 3
The Regulations of the State Ethics Commission similarly define the term "public official"
and set forth the following additional criteria that are used to determine whether the advisory board
exception applies:
(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 moneys, 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 minimis
economic impact on the interest of a person.
(B) The body will be deemed to have the authority to
otherwise exercise the power of the Commonwealth 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 a political subdivision.
(ii) The term does not include judges and inspectors of
elections, notary publics and political parry officers.
(iii) The term generally includes persons in the following
offices:
(A) Incumbents of offices filled by nomination of the
Governor and confirmation of the Senate.
(B) Heads of executive, legislative and independent
agencies, boards and commissions.
Hollins. 23-510
February 6, 2023
Page 4
(C) Members of agencies, boards and commissions
appointed by the General Assembly or its officers.
(D) Persons appointed to positions designated as officers
by the Commonwealth or its political subdivisions.
(E) Members of municipal, industrial development,
housing, parking and similar authorities.
(F) Members of zoning hearing boards and similar quasi-
judicial bodies.
(G) Members of the public bodies meeting the criteria in
paragraph (i)(A).
51 Pa. Code § 11.1.
In applying the Ethics Act's definition of the term "public official," the first portion of the
definition provides that a public official is a person who 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 exclusion for members of
purely advisory boards is applicable. Eiben, Opinion 04-002. The fact that you were appointed to
America250PA by the Chester County Board of Commissioners — a statutorily created commission
within State government —satisfies the first portion of the definition.
As for the remainder of the definition as to whether you would fall within the advisory
board exception, the answer is unclear based upon the provided information. Some of the listed
duties of America250PA, such as preparing and implementing county -wide marketing and
organizing and sponsoring ongoing programs and events for the 2501h celebration, suggest the
power to expend public funds. To the extent that these activities, or others listed in the bylaws of
America250PA, involve the power to expend public funds, then you would be considered a "public
official" subject to the Ethics Act and the Regulations of the State Ethics Commission, and in
particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act.
Conclusion:
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
In your capacity as chairman of the America250PA Chester County Commission, you
would be considered a "public official" subject to the Public Official and Employee Ethics Act
("Ethics Act"), 65 Pa.C.S. § 1101 et SeMc ., and the Regulations of the State Ethics Commission, 51
Pa. Code § 11.1 et. Sete ., and particularly, the requirements for filing Statements of Financial
Interests, if America250PA has the authority to expend public funds.
To the extent that America250PA is purely an advisory board with no authority to expend
public funds other than reimbursement for personal expense or to otherwise exercise the power of
Holling, 23-510
February 6, 2023
Page 5
the State or any political subdivision thereof, you would not be considered a "public official"
subject to the Ethics Act and the Regulations of the State Ethics Commission, including the
requirements for filing Statements of Financial Interests.
Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full Commission. A personal appearance before the Commission
will be scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually received at the Commission within
thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery, United States mail, delivery service, or by FAX
transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30)
days may result in the dismissal of the appeal.
Respectfully,
Bri
dget �e il_foyle....
...dg
Chief Counsel