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OPINION u F THE COOMMISSION 11. %�v 3
Before: Shelley Y. Simms, Chair
Michael A. Schwartz, Vice Chair
Rhonda Hill Wilson
Paul E. Parsells
David L. Reddecliff
Robert P. Caruso
DATE DE. CIDER: 4/12/23
DATE MAILED: 4,/12/23
To the Requester:
Dr, Leah Spangler
Dear Dr. Spangler:
23-001
This Opinion is issued in response to your letter dated January 11, 2023, by which you
requested an advisory opinion from the Pennsylvania State Ethics Commission ("Ethics
Commission").
I. ISSUE:
Whether a member of the Pennsylvania State Advisory Council on Early Childhood
Education and Care would be considered a "public official" 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, 51 Pa. Code § 11.1. et seq., and particularly, the requirements for filing
Statements of Financial Interests.
II. FACTUAL BASIS FOR DETERMINATION:
You request an advisory opinion fi-orn this Commission as to whether, in your capacity as,
Vice Chair of the Pennsylvania State Advisory Council on Early Childhood Education and Care
S an ier, 23-001
April 12, 2023
Page 2
("ECEC Council"), you would be considered a "public official" subject to the Ethics Act, 65
Pa.C.S. § 1101 et sec.., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et
sew., and particularly, the requirements for filing Statements of Financial Interests.
We take administrative notice that the ECEC Council was established by Executive Order
2022-04 issued October 5, 2022. Executive Order 2022-04 provides, in pertinent part, as follows:
1. Purpose. The Council shall advise the administration in
planning for the expansion of effective early learning and
development services for young children and their families and
make recommendations to ensure the plans are implemented
successfully. The Council will be responsible for advising on the
coordination of the delivery of Federal and Commonwealth
programs designed to serve young children from birth through
their entry into school and making recommendations to ensure a
smooth transition for those children into K-12 education and
other programs serving older children.
2. Responsibilities. The Council shall have the following
responsibilities, consistent with Federal law:
a. Perform a periodic statewide needs assessment concerning
the quality and availability of early childhood learning and
development programs and services for children from low-
income families from birth to school entry.
b. Identify opportunities for, and barriers to, collaboration and
coordination among Federally -funded and Commonwealth -
funded child care, child learning, development, and
education services, and early childhood programs and
services.
e. Develop recommendations for the Child Care Development
Fund State Plans to increase the overall participation of
children in existing Federal, Commonwealth, and local child
care and early childhood learning, education, and
development programs aimed at ensuring a continuum of
care from birth through kindergarten entry and to facilitate
enrollment in these programs for underrepresented and
special populations.
d. Develop recommendations to expand access to quality care
and education opportunities for children experiencing
homelessness.
e. Advise on the continuous improvement of the Pennsylvania
S a� ngler, 23-001
April 12, 2023
Page 3
Statewide Child Care Emergency Plan to address the needs
of all children in Early Childhood Education (ECE) settings.
L Advise on the alignment of policies and funding across ECE
programs to encourage healthy child development,
comprehensive developmental and behavioral screening,
linkages to services, and follow up.
g. Develop recommendations to streamline enrollment for
families who are eligible for multiple public benefits.
h. Develop recommendations to align OCDEL'si child care
facility licensing requirements and monitoring efforts with
program and regulatory requirements for other early learning
programs such as Head Start, PA Pre-K Counts, and Early
Intervention.
i. Provide recommendations to OCDEL and institutions of
higher education on implementation and continued
enhancement of the standards for professional development
and qualifications for early childhood educators as well as
the established markers for career advancement through the
Pennsylvania ECE Career Pathway to improve the
knowledge, skills, and abilities of ECE teachers and
administrators.
j. Develop consistent policies and training across ECE settings
to:
(1) Reduce suspension and expulsion of young children,
(2) Increase inclusion opportunities,
(3) Support children and families who are dual language
learners, and
(4) Promote trauma -informed care.
k. Review and advise on Pennsylvania's policies for children
and families transitioning between ECE programs and
services and between ECE and the public school system.
3. Composition. The members of the Council shall be appointed
by the Governor ....
' OCDEL is the acronym for the Office of Child Development and Early Learning (OCDEL), a collaborative effort
between the Pennsylvania Department of Education and the Pennsylvania Department of Human Services.
Spangler, 23-001
April 12, 2023
Page 4
6. Operations. Council operations will include the following.
c. OCDEL will assist the Council by providing staff support
and/or information requested by the Council that is needed
for the Council to make informed recommendations
pursuant to this Executive Order ....
7. Relationship with other agencies. All Commonwealth
agencies under the Governor's jurisdiction shall cooperate with
and review the recommendations of the Council with respect to
its purpose and responsibilities as set forth in this Executive
Order.
Executive Order 2022-04, at 1-3, 6-7.
By letter dated February 24, 2023, you were notified of the date, time and location of the
executive 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 requester based upon the facts that the
requester has submitted. In issuing the advisory 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 advisory only
affords a defense to the extent the requester has truthfully disclosed all material facts.
The terra "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.
The first portion of the Ethics Act's definition of the term "public official" provides that a
S an ngler, 23-001
April 12, 2023
Page 5
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.
The Regulations of the State Ethics Commission similarly define the terra "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.
S ap nglet, 23-001
April 12, 2023
Page 6
(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.
(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 the instant matter, the fact that the Governor appoints the Members of the ECEC Council
satisfies the first portion of the definition of the term "public official" (see, 65 Pa.C.S. § 1102
(definitions of "public official" and "governmental body"); PA CONST. ART. IV, Section l; Smith,
Opinion 04-014; Cohen, Opinion 03-006.
As to the remainder of the definition, we conclude that in your capacity as a Member of
the ECEC Council, you would not fall within the statutory exception for members of purely
advisory boards lacking authority to expend public funds other than reimbursement for personal
Spangler, 23-001
April 12, 2023
Page 7
expense or to otherwise exercise the power of the State or a political subdivision. In considering
the responsibilities of the ECEC Council set forth in Executive Order 2022-04, Section 2, it is clear
that although the ECEC Council performs a number of advisory functions, for purposes of applying
the Ethics Act, the ECEC Council goes beyond advisory functions. Specifically, the
responsibilities of the ECEC Council to: (1) perform a periodic statewide needs assessment
concerning the quality and availability of early childhood learning and development programs and
services for children from low-income families from birth to school entry; and (2) develop
consistent policies and training across ECE settings to (a) reduce suspension and expulsion of
young children, (b) increase inclusion opportunities, (c) support children and families who are dual
language learners, and (d) promote trauma -informed care, would exceed a purely advisory function
in that the ECEC Council has authority to exercise a basic power of government.
Coverage under the Ethics Act is to be construed broadly and exclusions under the Ethics
Act are to be construed narrowly. See, ua lia 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). Based upon the above, you are advised that as a Member of the ECEC Council
you are a "public official" 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.
IV. CONCLUSION:
In your capacity as a Member and Vice Chair of the Pennsylvania State Advisory Council
on Early Childhood Education and Care, you are a "public official" subject to the provisions of
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 SeMc ., and in particular, the
requirements for filing Statements of Financial Interests pursuant to the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(10) of the Ethics Act, the person who acts in good faith on this
Opinion issued to her shall not be subject to criminal or civil penalties for so acting provided the
material facts are as stated in the request.
An adapted version of this letter will be made available as a public record.
By the Commission,
LA, t mn��
Shelley Y3zms
Chair