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HomeMy WebLinkAbout23-536 Dinniman PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL June 12, 2023 To the Requester: Dr. Andrew Dinniman 23-536 Dear Dr. Dinniman: This responds to your email received June 2, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether, as a Member of the Board of Trustees of Lincoln University or as a Member of the Tuition Account Program Advisory Board, you are a “public official” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 etseq., 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. Brief Answer: NO. Based upon the administratively noted facts, you are not a “public official” subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commissionin either of your aforesaid capacities. Therefore, you are not required to file Statements of Financial Interests as a Member of the Board of Trustees of Lincoln University or as a Member of the Tuition Account Program Advisory Board. Facts: You seek a determination as to whether, as a Member of the Board of Trustees of Lincoln University or as a Member of the Tuition Account Program Advisory Board, you are a “public official” subject to the Ethics Act and the Regulations of the State Ethics Commission. In particular, you ask whether you are required to file Statements of Financial Interests in either of your aforesaid capacities. Dinniman, 23-536 June 12, 2023 Page 2 You were appointed to the Board of Trustees of Lincoln University by the Pennsylvania Senate. Administrative notice is taken of the following information with respect to Lincoln University: Section 2510-402 of the Lincoln University—Commonwealth Act establishes the status of Lincoln University as an instrumentality of the Commonwealth to serve as a State-related institution in the Commonwealth system of higher education. See, 24 P.S. § 2510-402. The Board of Trustees of Lincoln University consists of 39 voting members, including members who are appointed by the Governor, the President Pro Tempore of the Pennsylvania Senate, and the Speaker of the Pennsylvania House of Representatives. See, 24 P.S. § 2510-404. You also were appointed to the Tuition Account Program Advisory Board by the Pennsylvania Senate. Administrative notice is taken of the following information with respect to the Tuition Account Program Advisory Board: The Tuition Account Program Advisory Board was created pursuant to Section 6901.304 of the Tuition Account Programs and College Savings Bond Act. See, 24 P.S. § 6901.304. The Tuition Account Program Advisory Board is composed of various public officials serving as ex officio members and other members who are appointed by the Governor, the President Pro Tempore of the Pennsylvania Senate, and the Speaker of the Pennsylvania House of Representatives. See, 24 P.S. § 6901.304(a). Section 6901.304(d) of the Tuition Account Programs and College Savings Bond Act sets forth the duties of the Tuition Account Program Advisory Board as follows: § 6901.304. Tuition Account Program Advisory Board (d) DUTIES.—The board shall consider, study and review the work of the Tuition Account Programs Bureau, shall advise the \[Pennsylvania Treasury Department\] on request and shall make recommendations on its own initiative for the improvement of the tuition account programs. The board shall report annually to the Governor and to the General Assembly, and may make such interim reports as are deemed advisable. 24 P.S. § 6901.304(d). 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, 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 Dinniman, 23-536 June 12, 2023 Page 3 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 requester has truthfully disclosed all of the 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. The related term “political subdivision” is defined as follows: “Political subdivision.” Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. 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: Dinniman, 23-536 June 12, 2023 Page 4 (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 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. Dinniman, 23-536 June 12, 2023 Page 5 (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. Conclusion: A. The Board of Trustees of Lincoln University In McQuaide, Opinion 80-043, the Commission addressed the issue of whether Members of the Board of Trustees of the Pennsylvania State University (“PSU”), a State-related university and instrumentality of the Commonwealth, 24 P.S. § 2510-503(6), would be considered “public officials” subject to the Ethics Act. The Commission determined that PSU is not the Commonwealth or an agency of the Commonwealth. The Commission noted that PSU is clearly not encompassed within the legislative or judicial branch of the Commonwealth. The Commission further noted that PSU is a “State-related” as opposed to a State-owned institution and that the Administrative Code, 71 P.S. § 61 et seq., does not include PSU in the executive branch of the Commonwealth. The Commission additionally noted that PSU is not a “political subdivision” as that term is defined in the Ethics Act. Based upon these factors, the Commission concluded that Members of the Board of Trustees of PSU are not “public officials” subject to the Ethics Act and the Regulations of the State Ethics Commission. In Novak, Opinion 91-009, the Commission cited McQuaide in concluding that PSU is a “business” as that term is defined in the Ethics Act. Based upon the above Commission precedents, the necessary conclusion is that for purposes of the Ethics Act, Lincoln University — a State-related institution and instrumentality of the Commonwealth similar to PSU — is not to be considered an institution within the executive, legislative, or judicial branch of the Commonwealth or a political subdivision of the Commonwealth. Accordingly, in your capacity as a Member of the Board of Trustees of Lincoln University, you are not a “public official” as that term is defined by the Ethics Act, and therefore you are not required to file Statements of Financial Interests in that capacity. B. The Tuition Account Program Advisory Board In considering the definition of the term “public official,” the necessary conclusion is that as a Member of the Tuition Account Program Advisory Board, you would fall within the statutory Dinniman, 23-536 June 12, 2023 Page 6 exclusion 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 any political subdivision thereof. It is clear that the duties of the Tuition Account Program Advisory Board as delineated in Section 6901.304(d) of the Tuition Account Programs and College Savings Bond Actare purely advisory. Accordingly, in your capacity as a Member of the Tuition Account Program Advisory Board, you are not a “public official” as that term is defined by the Ethics Act, and therefore you are not required to file Statements of Financial Interests in that capacity. 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 civilor 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 receivedat 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, Bridget K. Guilfoyle, Chief Counsel