HomeMy WebLinkAbout03-002 Del SordoLinda Williams
Support Project Director
Pennsylvania Rehabilitation Council
1902 Market Street
Camp Hill, PA 17011
Re: Public Official; Member, Pennsylvania Rehabilitation Council; Statements of Financial
Interests.
Dear Ms. Williams:
OPINION OF THE COMMISSION
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Daneen E. Reese
Frank M. Brown
Susan Mosites Bicket
Donald M. McCurdy
Michael J. Healey
DATE DECIDED: April 4, 2003
DATE MAILED: April 18, 2003
03 -002
This Opinion is issued in response to your advisory requests dated January 23, 2003
and February 14, 2003.
I. ISSUE:
Whether Members of the Pennsylvania Rehabilitation Council would be considered
"public officials" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, and particularly,
the requirements for filing Statements of Financial Interests.
II. FACTUAL BASIS FOR DETERMINATION:
As Support Project Director for the Pennsylvania Rehabilitation Council (PaRC), you
seek an advisory opinion from this Commission on behalf of the following individuals who
serve as Members of the PaRC and the PaRC Executive Committee: Ms. Catherine Close,
Chairperson; Ms. Jamie Ray, Vice - Chairperson; Mr. Chuck Giambrone, Member at Large; Mr.
David Pistner; Ms. Virginia Del Sordo; and Mr. Darryl Herman, Sr. The question posed is
whether these Members of the PaRC who have authorized your inquiry would be considered
public officials and therefore would be required to file Statements of Financial Interests
pursuant to the Ethics Act.
You state that there seems to be no documentation in Pennsylvania law regarding the
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basis for the existence of the PaRC. Additionally, no written documentation as to the
establishment of the PaRC has been found at the office of the Secretary of Labor and
Industry. You state that the only documentation regarding the basis for the existence of the
PaRC is the federal Rehabilitation Act which is at 29 U.S.C.A. § 701 et seq.
By letter dated March 10, 2003, 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), advisories are issued to the requestor based upon the facts
which the requestor has submitted. In issuing the advisory based upon the facts which the
requestor has submitted, this Commission does not engage in an independent investigation of
the facts, nor does it speculate as to facts which have not been submitted. It is the burden of
the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S.
§§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
It is further noted that this advisory only addresses the conduct of those individuals who
have specifically given you their permission to submit your inquiry on their behalf. As to all
others, you are considered a third party without legal standing.
We take administrative notice that the federal Rehabilitation Act, which pertains to
services for individuals with disabilities, provides in pertinent part as follows:
§ 721. State plans
(a) Plan requirements
(1) In general
(A) Submission
To be eligible to participate in programs under this
subchapter [29 U.S.C.A. § 720 et seq.], a State shall submit to
the Commissioner a State plan for vocational rehabilitation
services that meets the requirements of this section ... .
(5) Order of selection for vocational rehabilitation services
In the event that vocational rehabilitation services cannot be
provided to all eligible individuals with disabilities in the State who apply
for the services, the State plan shall —
(A) show the order to be followed in selecting eligible individuals
to be provided vocational rehabilitation services;
(B) provide the justification for the order of selection;
(C) include an assurance that, in accordance with criteria
established by the State for the order of selection, individuals with the
most significant disabilities will be selected first for the provision of
vocational rehabilitation services; and
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(D) provide that eligible individuals, who do not meet the order
of selection criteria, shall have access to services provided through the
information and referral system implemented under paragraph (20).
§ 725. State Rehabilitation Council
(a) Establishment
(1) In general
Except as provided in section 721(a)(21)(A)(i) of this title, to be
eligible to receive financial assistance under this subchapter [29
U.S.C.A. § 720 et se .] a State shall establish a State Rehabilitation
Council (referred to in t is section as the "Council ") in accordance with
this section.
(2) Separate agency for individuals who are blind
A State that designates a State agency to administer the part of
the State plan under which vocational rehabilitation services are
provided for individuals who are blind under section 721(a)(2)(A)(i) of
this title may establish a separate Council in accordance with this
section to perform the duties of such a Council with respect to such
State agency.
(b) Composition and appointment
(3) Appointment
Members of the Council shall be appointed by the Governor or, in
the case of a State that, under State law, vests authority for the
administration of the activities carried out under this chapter [29
U.S.C.A. § 701 et seq.] in an entity other than the Governor (such as
one or more houses of the State legislature or an independent board),
the chief officer of that entity. The appointing authority shall select
members after soliciting recommendations from representatives of
organizations representing a broad range of individuals with disabilities
and organizations interested in individuals with disabilities. In selecting
members, the appointing authority shall consider, to the greatest extent
practicable, the extent to which minority populations are represented on
the Council.
(7) Vacancies
(A) In general
Except as provided in subparagraph (B), any vacancy
occurring in the membership of the Council shall be filled in the
same manner as the original appointment. The vacancy shall not
affect the power of the remaining members to execute the duties
of the Council.
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(B) Delegation
The appointing authority described in paragraph (3) may
delegate the authority to fill such a vacancy to the remaining
members of the Council after making the original appointment.
(c) Functions of Council
The Council shall, after consulting with the State workforce investment
board—
(1) review, analyze, and advise the designated State unit regarding the
performance of the responsibilities of the unit under this subchapter [29
U.S.C.A. § 720 et seq.], particularly responsibilities relating to—
(A) eligibility (including order of selection);
(B) the extent, scope, and effectiveness of services provided;
and
(C) functions performed by State agencies that affect or that
potentially affect the ability of individuals with disabilities in
achieving employment outcomes under this subchapter [29
U.S.C.A. § 720 et seq.];
(2) in partnership with the designated State unit —
(A) develop, agree to, and review State goals and priorities in
accordance with section 721(a)(15)(C) of this title; and
(B) evaluate the effectiveness of the vocational rehabilitation
program and submit reports of progress to the Commissioner in
accordance with section 721(a)(15)(E) of this title;
(3) advise the designated State agency and the designated State unit
regarding activities authorized to be carried out under this title, and
assist in the preparation of the State plan and amendments to the plan,
applications, reports, needs assessments, and evaluations required by
this subchapter [29 U.S.C.A. § 720 et seq.];
(4) to the extent feasible, conduct a review and analysis of the
effectiveness of, and consumer satisfaction with —
(A) the functions performed by the designated State agency;
(B) vocational rehabilitation services provided by State agencies
and other public and private entities responsible for providing
vocational rehabilitation services to individuals with disabilities
under this chapter [29 U.S.C.A. § 701 et seq.]; and
(C) employment outcomes achieved by eligible individuals
receiving services under this title, including the availability of
health and other employment benefits in connection with such
employment outcomes;
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(5) prepare and submit an annual report to the Governor and the
Commissioner on the status of vocational rehabilitation programs
operated within the State, and make the report available to the public;
(6) to avoid duplication of efforts and enhance the number of individuals
served, coordinate activities with the activities of other councils within
the State, including the Statewide Independent Living Council
established under section 796d of this title, the advisory panel
established under section 1412(a)(21) of Title 20 (as amended by
section 101 of the Individuals with Disabilities Education Act
Amendments of 1997; Public Law 105 -17), the State Council on
Developmental Disabilities established under section 15025 of Title 42,
the State mental health planning council established under section
300x -3(a) of Title 42, and the State workforce investment board;
(7) provide for coordination and the establishment of working
relationships between the designated State agency and the Statewide
Independent Living Council and centers for independent living within the
State; and
(8) perform such other functions, consistent with the purpose of this title,
as the State Rehabilitation Council determines to be appropriate, that are
comparable to the other functions performed by the Council.
(d) Resources
(1) Plan
The Council shall prepare, in conjunction with the designated
State unit, a plan for the provision of such resources, including such
staff and other personnel, as may be necessary and sufficient to carry
out the functions of the Council under this section. The resource plan
shall, to the maximum extent possible, rely on the use of resources in
existence during the period of implementation of the plan.
(2) Resolution of disagreements
To the extent that there is a disagreement between the Council
and the designated State unit in regard to the resources necessary to
carry out the functions of the Council as set forth in this section, the
disagreement shall be resolved by the Governor consistent with
paragraph (1).
(3) Supervision and evaluation
Each Council shall, consistent with State law, supervise and
evaluate such staff and other personnel as may be necessary to carry
out its functions under this section.
(4) Personnel conflict of interest
While assisting the Council in carrying out its duties, staff and
other personnel shall not be assigned duties by the designated State
unit or any other agency or office of the State, that would create a
conflict of interest.
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(e) Conflict of interest
No member of the Council shall cast a vote on any matter that would
provide direct financial benefit to the member or otherwise give the appearance
of a conflict of interest under State law.
(f) Meetings
The Council shall convene at least four meetings a year in such places
as it determines to be necessary to conduct Council business and conduct
such forums or hearings as the Council considers appropriate. The meetings,
hearings, and forums shall be publicly announced. The meetings shall be open
and accessible to the general public unless there is a valid reason for an
executive session.
(g) Compensation and expenses
The Council may use funds allocated to the Council by the designated
State unit under this subchapter [29 U.S.C.A. § 720 et seq.] (except for funds
appropriated to carry out the client assistance program under section 732 of this
title and funds reserved pursuant to section 730(c) of this title to carry out part
C [29 U.S.C.A. § 741 et seq.] of this subchapter) to reimburse members of the
Council for reasonable and necessary expenses of attending Council meetings
and performing Council duties (including child care and personal assistance
services), and to pay compensation to a member of the Council, if such
member is not employed or must forfeit wages from other employment, for
each day the member is engaged in performing the duties of the Council.
(h) Hearings and forums
The Council is authorized to hold such hearings and forums as the
Council may determine to be necessary to carry out the duties of the Council.
29 U.S.C.A. §§ 721(a)(1), (5); 725(a), (b) (3), (b) (7), (c) -(h) (Emphasis added).
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 (Emphasis added).
The Regulations of this 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:
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(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 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.
(11) 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 party 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.
(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.
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bodies.
(F) Members of zoning hearing boards and similar quasi - judicial
(G) Members of the public bodies meeting the criteria in paragraph
(i)(A).
51 Pa. Code § 11.1.
Status as a "public official" subject to the Ethics Act is determined by applying the
above definition and criteria to the position held. The focus is necessarily upon the position
itself, and not upon the individual incumbent in the position, the variable functions of the
position, or the manner in which a particular individual occupying the position may carry out
those functions. See, Philips v. State Ethics Commission, 470 A.2d 659 Pa. Commw. Ct.
1984); Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982. Furthermore, the
Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be
construed broadly and that exclusions under the Ethics Act be construed narrowly. See,
Phillips, supra.
In applying the first portion of the definition of "public official," a public official is a
person who: (1) is elected by the public; (2) is elected or appointed by a governmental body;
or (3) is an appointed official in the executive, legislative or judicial branch of the
Commonwealth or a political subdivision of the Commonwealth. Muscalus, Opinion 02 -007.
The Members of the PaRC on whose behalf you have inquired would at the very least fall
within the third category above. These Members have been appointed to the PaRC.
Furthermore, given the requirement of 29 U.S.C.A. § 725(a) that in order to receive financial
assistance under the federal law, "a State shall establish a State Rehabilitation Council," the
PaRC has ipso facto been established as a governmental body within the executive branch of
this Commonwealth. Therefore, the Members of the PaRC on whose behalf you have
inquired are appointed officials in the executive branch of the Commonwealth. Such status
satisfies the first portion of the definition.
As for the remainder of the definition, it is the determination of this Commission that the
Members of the PaRC on whose behalf you have inquired would not fall within the statutory
exception for members of purely advisory boards lacking authority to expend public funds
other than reimbursement for personal expense or to otherwise exercise the power of the State
or a political subdivision. In considering the powers and duties of the PaRC, it is clear that
although the PaRC performs some advisory functions, for purposes of applying the Ethics
Act, the PaRC goes beyond advisory functions. The provisions of the federal law that are
italicized above establish that the PaRC does exercise the power of the State as to the State
plan and related needs assessments and evaluations and does have some authority with
regard to the expenditure of public funds. Cf., Cope, Order 143 -S -R.
As Members of the PaRC, the individuals on whose behalf you have inquired have the
statutory authority and /or responsibility to participate in these activities, which meet the
definition and the criteria by which status as a "public official" is determined. Therefore, based
upon the above judicial directives, the provisions of the Ethics Act, this Commission's
Regulations, and the opinions of this Commission, in light of the above duties and
responsibilities, the necessary conclusion is that the Members of the PaRC on whose behalf
you have inquired are "public officials" subject to the Ethics Act and the Regulations of the
State Ethics Commission, and they are required to file Statements of Financial Interests
pursuant to the Ethics Act.
IV. CONCLUSION:
The Members of the Pennsylvania Rehabilitation Council (PaRC) who authorized the
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request for this advisory Opinion are to be considered "public officials" subject to the Public
Official and Employee Ethics Act and the Regulations of the State Ethics Commission.
Accordingly, such Members must file a Statement of Financial Interests each year in which
they hold the aforesaid position and the year following their termination of such service.
The propriety of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 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.lAn adapted version of
this letter will be made available as a public record
Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the mailing
date of this Opinion. The party requesting reconsideration must include a detailed explanation
of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §
21.29(b).
By the Commission,
Louis W. Fryman
Chair