HomeMy WebLinkAbout24-521 Shields
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
April 1, 2024
To the Requester:
Maraleen D. Shields, Esquire
24-521
Dear Ms. Shields:
This responds to your letter dated February 29, 2024, received March 5, 2024, by which
you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”),
seeking guidance as to the issue presented below:
Issue:
Whether, as an ex officio nonvoting Member of the Indigent Defense Advisory Committee
(“IDAC”) within the Pennsylvania Commission on Crime and Delinquency (“PCCD”),
you are 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.
Brief Answer: NO. Based upon the submitted and administratively noted facts, you arenot
a “public official” subject to the provisions of the Ethics Act and the Regulations of the State
Ethics Commission in the aforesaid capacity. Therefore, you are not required to file
Statements of Financial Interests as an ex officio nonvoting Member of the IDAC.
Facts:
You are the Executive Director of the Pennsylvania Interbranch Commission for Gender,
Racial, and Ethnic Fairness (“Interbranch Commission”). You were recently appointed as an ex
officio nonvoting Member of the IDAC, which is established within the PCCD as per the Fiscal
Code. See, 72 P.S. § 203-F.
Shields, 24-521
April 1, 2024
Page 2
You seek a determination as to whether, as an ex officio nonvoting Member of the IDAC,
you area “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 the aforesaid capacity.
Administrative notice is taken of the following information:
The IDAC is comprised of: (1) the Commonwealth Victim Advocate and the executive
directors of six commissions or associations, including the Executive Director of the
Interbranch Commission, all of whom shall serve as ex officio nonvoting Members; (2)
four individuals appointed by the President pro tempore of the Pennsylvania Senate, the
Minority Leader of the Pennsylvania Senate, the Speaker of the Pennsylvania House of
Representatives, or the Minority Leader of the Pennsylvania House of Representatives;
(3) eight individuals appointed by the Governor; and (4) three judges and four public
defenders appointed by the Chief Justice of the Pennsylvania Supreme Court. See, 72 P.S.
§ 203-F(b).
The IDAC has the following statutory duties and responsibilities:
§ 203-F(i). Duties and responsibilities. With the review and
approval of the \[PCCD\], the committee shall have the
following duties and responsibilities:
(1) Propose minimum standards for the delivery of
effective indigent defense services throughout this
Commonwealth that are consistent with the
requirements of the Constitution of the United States
and the Constitution of Pennsylvania.
(2) Propose minimum standards for attorneys providing
indigent defense services to ensure that the ability,
training and experience of the attorneys match the
cases assigned to the attorneys.
(3) Submit proposed standards to the Pennsylvania
Supreme Court for adoption through a manner
prescribed by the Supreme Court.
(4) Identify, develop or provide appropriate Statewide
continuing legal education courses, practical training
programs and skill development resources, including
preservice training for newly hired public defenders,
public defender staff attorneys, assigned counsel and
contract public defenders and other counsel who
provide indigent defense services.
Shields, 24-521
April 1, 2024
Page 3
(5) Identify, develop or provide appropriate programs
for capital case defense skills training, adult criminal
defense training, juvenile delinquency defense
training and management and leadership training for
chief defenders and public defender office leaders
and other counsel who provide indigent defense
services.
(6) Establish a virtual defender training library
consisting of all programs approved by the
committee.
(7) Adopt standards by which counties shall collect and
report, at a minimum, the following to the
committee:
(i) The caseload and workload of each attorney
in the county's public defender office.
(ii) The caseload and workload of attorneys who
are assigned to represent an indigent
defendant as conflict counsel or contract
counsel in the county.
(iii) The total expenditures and per capita
spending for indigent criminal defense
services in the county.
(8) Adopt standards for the use of case management
systems or software by county public defender
offices.
(9) Develop, in partnership with the Administrative
Office of Pennsylvania Courts and the Juvenile Court
Judges' Commission, data requests that include, at a
minimum, the following:
(i) The total number of criminal cases involving
a public defender by category of criminal
offense and by county.
(ii) The total number of criminal cases
adjudicated or closed involving a public
defender by category of disposition type and
by county.
Shields, 24-521
April 1, 2024
Page 4
(iii) The total number of juvenile delinquency
cases involving a public defender by category
of offense and by county.
(iv) The total number of juvenile delinquency
cases adjudicated or closed involving a
public defender by category of disposition
type and by county.
(v) The total number of criminal cases with a
court appointed attorney, not a public
defender.
(vi) The total number of juvenile delinquency
cases with a court appointed attorney, not a
public defender.
(vii) The total number of criminal and juvenile
delinquency cases appealed involving a
public defender by county.
(10) Partner with other departments or agencies for the
collection of data related to the delivery of indigent
defense services, as may be required by the
committee.
(11) Analyze the data to identify trends and overall
effectiveness of indigent defense services in the State
and the impact of the standards adopted on the
effectiveness of indigent defense services in the
future.
(12) Prepare a report which includes, at a minimum, the
actions of the committee, details of grants awarded,
summaries of data collected with statistics regarding
the delivery of indigent defense services and
recommendations for improvement of the indigent
defense system in this Commonwealth. The report
shall be submitted two years from the effective date
of this section and biennially thereafter. The report
shall be published on the commission's publicly
accessible Internet website. A copy of the report shall
be submitted to the Governor, the chair and minority
chair of the Judiciary Committee of the Senate, the
chair and minority chair of the Judiciary Committee
of the House of Representatives, the chair and
minority chair of the Appropriations Committee of
Shields, 24-521
April 1, 2024
Page 5
the Senate, the chair and minority chair of the
Appropriations Committee of the House of
Representatives and the Pennsylvania Supreme
Court.
(13) Perform functions related to the direct approval and
disbursement of grants under the Indigent Defense
Grant Program established under subsection (k) in an
advisory capacity only.
72 P.S. § 203-F(i).
Members of the IDAC shall not receive a salary or per diem allowance for serving as IDAC
Members but shall be reimbursed for actual and necessary expenses incurred in the
performance of duties as IDAC Members. See, 72 P.S. § 203-F(g).
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
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 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:
Shields, 24-521
April 1, 2024
Page 6
(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 party officers.
(iii) The term generally includes persons in the following
offices:
Shields, 24-521
April 1, 2024
Page 7
(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 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.
In considering the definition of the term “public official,” the necessary conclusion is that
as an ex officio nonvoting Member of the IDAC, you 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. It is clear that the duties and responsibilities of the IDAC as delineated in
Section 203-F(i) of the Fiscal Code are purely advisory. Accordingly, in your capacity as an ex
officio nonvoting Member of the IDAC, 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.
The propriety of the proposed conduct only has been addressed under the Ethics Act; the
applicability of any other statute, code, ordinance, regulation or other code of conduct other than
the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics
Act.
Shields, 24-521
April 1, 2024
Page 8
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 appealmust 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