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HomeMy WebLinkAbout24-508 Confidential 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 January 22, 2024 To the Requester: 24-508 This responds to your submission received January 12, 2024, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whetherthe Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving as a Member of \[Governmental Body 1\] with regard to appearing before \[Governmental Body 1\] or \[Governmental Body 2\] at a public meeting in his private capacity as a citizen and speaking or providing written comment with respect to the merits of \[Certain Projects\] that abut properties owned in part by his \[Immediate Family Member 1\] or \[Immediate Family Member 2\]. Brief Answer: NO. Based upon the submitted facts, in his capacity as a Member of \[Governmental Body 1\], the individual is not a “public official” subject to the provisions of the Ethics Act. Therefore, the propriety of the individual’s proposed conduct would not be governed by the Ethics Act. Facts: You have been authorized by \[the Individual\] to request a confidential advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. \[The Individual\] is a Member of \[Governmental Body 1\], which is composed of \[a Number of Members\] who are appointed by \[Governmental Body 2\]. Pursuant to \[Chapter, Section\] of the \[Political Subdivision\] \[Legislation\], \[Governmental Body 1\] has \[Powers and Duties\] asset forth in the \[Law\]. Confidential Advice, 24-508 January 22, 2024 Page 2 \[Governmental Body 1\]is a recommending body that reports to \[Governmental Body 2\]. \[Governmental Body 1\]\[Performs Certain Functions\]. With respect to \[Certain Matters\], \[Governmental Body 1\]may \[Make Certain Recommendations\]. \[Governmental Body 2\] takes official action on \[Types of Matters\] after \[Governmental Body 1\] has reviewed them and made its recommendations. \[The Individual’s\] \[Immediate Family Member 1\] is part owner of \[Type of Property\] in the \[Political Subdivision\] which abuts the proposed site of a \[Type of Project 1\]. \[The Individual’s\] \[Immediate Family Member 2\] is part owner of \[a Number of\] properties in the \[Political Subdivision\], each of which abuts the proposed site of a \[Type of Project 2\]. \[The Individual\] has no ownership interest in the properties partly owned by his \[Immediate Family Member 1\] and \[Immediate Family Member 2\]. \[The Individual\], in his private capacity as a citizen, would like to address \[Governmental Body 1\] and possibly \[Governmental Body 2\] at public meetings or provide written comment with respect to the merits of the \[Types of Projects\] proposed for the properties abutting those partly owned by his \[Immediate Family Member 1\] and \[Immediate Family Member 2\]. His comments could include \[Certain Statements\]. \[The Individual\] would recuse himself from \[Governmental Body 1’s\] review of \[Certain Matters Pertaining to\] the proposed \[Types of Projects\]. You ask whether the Ethics Act would permit \[the Individual\], in his private capacity as a citizen, to address \[Governmental Body 1\] or \[Governmental Body 2\] or provide written comment with respect to the merits of the \[Types of Projects\] proposed for the properties abutting those partly owned by his \[Immediate Family Member 1\] and \[Immediate Family Member 2\]. Discussion/Conclusion: 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 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. In responding to your inquiry, the threshold question to be addressed is whether \[the Individual\] is a public official in his capacity as a Member of \[Governmental Body 1\]. 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 Confidential Advice, 24-508 January 22, 2024 Page 3 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: (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. Confidential Advice, 24-508 January 22, 2024 Page 4 (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. (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. Confidential Advice,24-508 January 22, 2024 Page 5 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. The fact that Members of \[Governmental Body 1\] are appointed by \[Governmental Body 2\]satisfies the first portion of the definition. In considering the remainder of the definition, the necessary conclusion is that \[the Individual\]would fall within the statutory 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. In considering the duties and responsibilities of \[Governmental Body 1\]as delineated by the \[Law\]and under the submitted facts, it is clear that \[Governmental Body 1\]is a purely advisory board. Therefore, in his capacity as a Member of \[Governmental Body 1\], \[the Individual\]is not a “public official” subject to the Ethics Act. Accordingly, the propriety of \[the Individual’s\] proposed conduct of appearing before \[Governmental Body 1\]or \[Governmental Body 2\]at a public meeting in his private capacity as a citizen and speaking or providing written comment with respect to the merits of the \[Typesof Projects\]that abut the properties owned in part by his \[Immediate Family Member 1\] and\[Immediate Family Member 2\]would not be governedby the Ethics Act. 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 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