HomeMy WebLinkAbout04-002 EibenDear Mr. Eiben:
I. ISSUE:
OPINION OF THE COMMISSION
Gary Eiben, Esquire
The McDor,pld Group, L.L.P.
456 West 6 Street
P.O. Box 1757
Erie, PA 16507 -0757
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Daneen E. Reese
Donald M. McCurdy
Michael J. Healey
Paul M. Henry
Raquel K. Bergen
DATE DECIDED: March 12, 2004
DATE MAILED: March 26, 2004
04 -002
Re: Public Official /Public Employee; Charter School; Non - Profit Corporation;
Director/Trustee; Chief Executive Officer; Chief Educational Officer; Educational
Administrator; Principal; Solicitor.
This Opinion is issued in response to your letters dated December 31, 2003, and
January 8, 2004, by which you requested advice from the State Ethics Commission.
Whether persons serving in the capacities of director /trustee, chief executive
officer, chief educational officer, educational administrator, principal, or solicitor for a
charter school would be considered "public officials" or "public employees" subject to
the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101 et
seq., when: (1) the charter school is a non - profit corporation incorporated by a separate
non - profit corporation; (2) the directors and chief executive officer are appointed by the
separate non - profit corporation; and (3) the remaining positions are appointed by the
charter school.
II. FACTUAL BASIS FOR DETERMINATION:
As Solicitor for the Perseus House Charter School of Excellence (hereinafter
referred to as the "Charter School "), you have been authorized to seek an advisory as to
Eiben, 04 -002
March 26, 2004
Page 2
whether persons serving in the capacities of director /trustee, chief executive officer,
chief educational officer, educational administrator, principal, or solicitor for the Charter
School would be considered "public officials" or "public employees" subject to the Ethics
Act. You have submitted copies of various documents setting forth position descriptions
for the positions of executive director /chief executive officer, chief educational officer,
secretary, treasurer and principal, which documents are incorporated herein by
reference. You have submitted facts, which may be fairly summarized as follows.
The Charter School was formed as a Pennsylvania non - profit corporation by its
parent organization, Perseus House, Inc. Perseus House, Inc. is a separate
Pennsylvania non - profit corporation. Articles of incorporation were filed for the Charter
School on January 30, 2003.
On February 28, 2003, the School District of the City of Erie granted a charter to
the Charter School pursuant to the Charter School Law, 24 P.S. § 17- 1701 -A et seq.
( "Charter School Law "). The Charter School opened in August 2003.
The Charter School is governed by a board of directors. You acknowledge that
the board of directors would be deemed the board of trustees under the Charter School
Law. The parent, Perseus House, Inc., appoints the directors of the Charter School
upon the recommendation of the Charter School.
The chief executive officer of the Charter School, who is appointed by Perseus
House, Inc., supervises the day -to -day operations of the Charter School. The chief
executive officer of the Charter School also serves as the chief executive officer of the
parent, Perseus House, Inc. The materials that you have submitted describing the
duties of this position indicate that the chief executive officer has authority, inter alia, to:
execute orders and resolutions of the board; execute bonds, mortgages andThther
documents under the corporate seal; be a voting member of all committees;
recommend the employment of prospective employees; exercise general powers of
supervision and management; establish personnel policies; establish fiscal policies;
prepare annual budgets, capital expenditures and planning; develop new services; and
oversee the improvement of existing services.
The Charter School appoints the other administrative officers about whom you
have inquired, specifically, the chief educational officer, two educational administrators
specifically, a secretary and treasurer, and a principal. The materials that you have
submitted describe the duties of these positions, in pertinent part, as follows.
The chief educational officer is responsible for the administrative operation of the
Charter School, overseeing the hiring of all staff members as well as the adoption of
policies, curriculum and operating guidelines for faculty and students.
The secretary is responsible for attending all meetings of the board of directors/
trustees, recording all votes and minutes, giving notice of board meetings, affixing the
corporate seal as authorized by the board, and performing other duties as may be
prescribed by the board or the executive director /chief executive officer.
The treasurer has custody of corporate funds and securities. The treasurer
maintains accounts of receipts and disbursements; keeps the monies of the corporation
in a corporate account; disburses corporate funds as ordered by the boar; and renders
to the executive director /chief executive officer and board an accounting of all
transactions of the Treasurer and the financial condition of the corporation.
The principal is responsible for overall supervision, coordination, and implementation
of the Charter School's program. The principal supervises the planning, development,
implementation and evaluation of all school programs and activities; participates in the
selection and supervision of all school personnel; assumes responsibility for implementing
Eiben, 04 -002
March 26, 2004
Page 3
board policies and regulations; assumes responsibility for the health, safety and welfare of
students and staff, including emergency planning and procedures; and establishes
procedures for the security of all school facilities, property and equipment.
You pose the following two specific inquiries:
(1) Whether the Ethics Act applies to the director /trustee of the Charter
School on whose behalf you have inquired; and
(2) Whether the Ethics Act applies to the chief executive officer, chief
educational officer, educational administrators, principal, or solicitor for the
Charter School.
You assert that a "charter school," as that term is defined in the Charter School
Law, lies somewhere between a public school and a private school.
While you acknowledge that "public officials" are subject to the Ethics Act, and
that the Charter School Law specifically states that trustees of a charter school shall be
public officials, 24 P.S. § 17- 1715 -A, you contend that neither directors nor officers of
the Charter School fall within the Ethics Act's definition of the term "public official." You
argue that the Charter School Law's designation of trustees as public officials serves
purposes unrelated to the Ethics Act, including the following: (1) reinforcing the
requirement in Section 1716 of the Charter School Law that meetings of the board of
trustees are to be held under the Sunshine Act (24 P.S. § 17- 1716- A(c)); and (2)
determining tort liability (24 P.S. § 17- 1727 -A). You further argue that if Section 17-
1715-A of the Charter School Law is the basis for the Commission concluding that
trustees are subject to the Ethics Act, the absence of such a statement in the Charter
School Law with respect to other officers and employees must be deemed to place
them beyond the scope of the Ethics Act.
You arcue that officers and directors of the Charter School do not meet the
criteria set fore in the Ethics Act's definition of "public official." You contend that such
persons are not elected by the public, elected or appointed by a governmental body, or
appointed officials in the executive, legislative or judicial branch of the Commonwealth.
You further contend that officers and directors of the Charter School are not appointed
officials or employees of any "political subdivision" of the Commonwealth. Citing the
Ethics Act's definition of "political subdivision," 65 Pa.C.S. § 1102, you argue that the
Charter School does not fall within the enumerated categories of political subdivisions,
such as a school district or a vocational school, and that the Charter School is not an
"authority, entity or body" organized by another political subdivision, having in your view
been organized by its parent, Perseus House, Inc., a separate non - profit corporation.
Additionally, you argue that the Charter School is not an "agency performing a
governmental function" so as to be a "governmental body" as defined by the Ethics Act,
65 Pa.C.S. § 1102, based upon your contention that the word "agency" must be
construed as meaning an "agency" of a governmental or political body.
You question whether the Legislature intended to bring charter schools within the
ambit of the Ethics Act, given that it did not specifically mention the Ethics Act in the Charter
School Law as it did certain other laws. You further question whether the Legislature could
broaden the Ethics Act and the jurisdiction of the State Ethics Commission without making
any reference to the Ethics Act in the Charter School Law. Noting that violations of the
Ethics Act may result in criminal sanctions, you state that "an individual is entitled to a clear
statement of the prohibition set forth in a criminal statute," and that those volunteering for
community service should not have to "parse through several statutes" in "a labyrinthine
manner" to determine whether they may be subject to criminal sanctions for a violation of
the Ethics Act. (Eiben letter of December 31, 2003, at 6).
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March 26, 2004
Page 4
Finally, you contend that this Commission's decision in Conaway, Order 1248,
involving a trustee of a charter school, did not directly analyze the question of whether a
charter school would be considered a governmental body or a political subdivision, such
that the employees and officials thereof would be subject to the Ethics Act.
We take administrative notice of the following additional facts.
The 1997 legislative debate in the Pennsylvania House of Representatives and
Senate regarding what is now the Charter School Law indicates the legislative intent
that charter schools be public schools within the public school system. See, Legislative
Journal of House, June 11, 1997, at 1456 -1457; Legislative Journal of Senate, June 11,
1997, at 755 -757. The cited legislative debate in the House specifically notes that the
charter schools will be funded with public dollars and will have public accountability for
the use of those dollars. Legislative Journal of House, June 11, 1997, at 1456.
The Charter School Law as promulgated indicates that charter schools are public
schools within the public school system. The "legislative intent" section of the Charter
School Law includes as one of the law's goals, "Provid[ing] parents and pupils with
expanded choices in the types of educational opportunities that are available within the
public school system." (24 P.S. § 17-1702-A(5) (Emphasis added). Additionally, the
term "charter school" is defined in the Charter School Law as follows:
§ 17 1703 - A. Definitions
"Charter school" shall mean an independent public
school established and operated under a charter from the
local board of school directors and in which students are
enrolled or attend. A charter school must be organized as a
public, nonprofit corporation. Charters may not be granted
to any for - profit entity.
24 P.S. § 17- 1703 -A (Emphasis added).
The statutory list of powers of charter schools includes the power to "[s]ue and be
sued, but only to the same extent and upon the same condition that political
subdivisions and local agencies can be sued." 24 P.S. § 17- 1714 -A(2).
Section 17- 1715 -A of the Charter School Law states, inter alia, "Charter schools
are not exempt from statutes applicable to public schools otherrtiais act," "A charter
school shall only be subject to the laws and regulations as provided for in section 1732 -
A or as otherwise provided for in this article," and "Trustees of a charter school shall be
public officials." 24 P.S. §§ 17-1715-A(1), (7), (11). A charter school is accountable to
parents, the public and the Commonwealth of Pennsylvania. 24 P.S. § 17- 1715 -A(2).
Charter schools are established through the submission /approval of an application
to the local board of school directors of the school district where the charter school is to
be located. 24 P.S. § 17- 1717 -A. A charter school does not exist absent the granting of
a charter by the local school district, either directly or through a deemed approval. Id.
A charter school is governed by a board of trustees. 24 P.S. § 17- 1716 -A. The
board of trustees has the authority, subject to the charter, to decide matters relating to
the operation of the charter school, such as budgeting, curriculum and operating
procedures, and to employ, discharge and contract with professional and
nonprofessional employees. Id.
Charter school boards of trustees are required to comply with the Sunshine Act.
24 P.S. § 17- 1716 -A(c). The Charter School Law also provides, "For purposes of tort
liability, employes of the charter school shall be considered public employes and the
Eiben, 04 -002
March 26, 2004
Page 5
board of trustees shall be considered the public employer in the same manner as
political subdivisions and local agencies." 24 P.S. § 17- 1727 -A.
Having set forth the material facts pertinent to our request, we would note that
by letter dated February 17, 2004, 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 that the requestor has submitted. In issuing the advisory based upon the facts
that the requestor 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 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 initially noted that this Commission, in the exercise of its jurisdiction, is
limited to making determinations under the Ethics Act. In making such determinations, it
is necessary at times to review other laws for background information, in order to
ensure a correct application of the Ethics Act. In the instant matter, we are reviewing
the Charter School Law for background information regarding charter schools.
However, it must be understood that our advice to you is limited to an application of the
Ethics Act to the questions that you have posed.
The responses to your questions hinge upon key definitions in the Ethics Act and
Regulations of the State Ethics Commission.
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:
(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
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March 26, 2004
Page 6
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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March 26, 2004
Page 7
(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.
The term "public employee" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis nature
on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
The Regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe ":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
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March 26, 2004
Page 8
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(I) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary - treasurers
acting as managers, police chiefs, chief clerks, chief purchasing
agents, grant and contract managers, administrative officers,
housing and building inspectors, investigators, auditors, sewer
enforcement officers and zoning officers in all governmental
bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers, construction
workers, equipment operators and recreation directors.
Eiben, 04 -002
March 26, 2004
Page 9
(B) Law clerks, court criers, court reporters, probation
officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
The terms "governmental body" and "political subdivision" contained within the
above definitions are themselves specifically defined in the Ethics Act. Therefore, this
Commission must apply the definitions of these terms as set forth in the Ethics Act, as
opposed to meanings that may exist in other laws or contexts:
§ 1102. Definitions
"Governmental body." Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body or
other establishment in the executive, legislative or judicial
branch of a state, a nation or a political subdivision thereof or
any agency performing a governmental function.
"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. See also, 51 Pa. Code § 11.1 (definition of "political subdivision ").
Because status as a public official or public employee depends in part upon the
nature of the entity served, we shall first consider the nature of the Charter School.
You assert that a charter school, as defined in the Charter School Law, lies
somewhere between a public school and a private school. However, the Charter
School Law clearly states that a charter school is an independent public school and is
part of the public school system (24 P.S. §§ 17- 1702 -A(5), 17- 1703 -A ( "charter
school ")). The legislative debate referenced above further supports this fact.
You assert that a charter school is neither a political subdivision nor a
governmental body. However, for reasons detailed below, we hold that a charter school
is a "political subdivision" as defined by the Ethics Act.
The Ethics Act defines the term "political subdivision" to include, inter alia, any
authority, entity or body "organized" by a school district. 65 Pa.C.S. § 1102. Neit'Tier the
Ethics Act, the Regulations of this Commission, nor the Statutory Construction Act
define the word "organize." 1 Pa.C.S. § 1991. There are also no judicial decisions
interpreting the word "organize" in the context of the Ethics Act. Thus, we must
consider what it means to "organize" an authority, entity or body, and whether a charter
school is organized" through the incorporation of the requisite public, non - profit
corporation (24 P.S. § 17- 1703 -A ( "charter school"), 17- 1720 -A), or through the
granting of a charter by the local school district (24 P.S. § 17- 1717 -A).
We are guided by the following applicable requirements for statutory construction:
(1) words are to be construed according to their common and approved usage, 1
Pa.C.S. § 1903(a); (2) "The object of all interpretation and construction of statutes is to
ascertain and effectuate the intention of the General Assembly," 1 Pa.C.S. § 1921(a);
(3) ". . . the General Assembly does not intend a result that is absurd, impossible of
execution or unreasonable," 1 Pa.C.S. § 1922(1); and (4) " ... the General Assembly
intends to favor the public interest as against any private interest," 1 Pa.C.S. § 1922(5
Eiben, 04 -002
March 26, 2004
Page 10
Additionally, to the extent words of the Ethics Act are not explicit, we may consider the
factors set forth at 1 Pa.C.S. § 1921(c), which include, inter alia, the occasion and
necessity for the Ethics Act, the circumstances under which t ie Ethics Act was enacted,
the mischief it is to remedy, the object it is to attain, and the consequences of a
particular interpretation.
With regard to legislative intent, given that: (1) charter schools are public schools
accountable to parents, the public and the Commonwealth (24 P.S. §§ 17- 1703 -A, 17-
1715- A(2)); (2) charter schools are not exempt from statutes applicable to public schools
(24 P.S. § 17-1715-A(1)), and the Ethics Act is applicable to public officials /public
employees of public schools; (3) the Charter School Law declares, without qualification,
that trustees of a charter school are public officials (24 P.S. § 17- 1715- A(11)), and the
Ethics Act applies to public officials; and (4) the Ethics Act is remedial legislation
designed to restore public confidence in government, with coverage under the Ethics Act
being broadly determined and exclusions under the Ethics Act being narrowly determined
(65 Pa.C.S. § 1101.1(a) Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw.
Ct. 1984)), the necessary conclusion is that the General Assembly intended for the Ethics
Act to apply to public officials /public employees of charter schools just as it applies to
public officials /public employees of other public schools.
As for your arguments that the Ethics Act is not specifically mentioned in the
Charter School Law, and that the Charter School Law's designation of trustees as public
officials serves purposes unrelated to the Ethics Act, we would note that in most
instances, the Ethics Act is not mentioned in statutes to which it is applicable, and
further, it is our view that the General Assembly uses narrow or broad language as it
intends. We cannot read limitations into the General Assembly's very broad statement,
without qualification, that trustees of charter schools shall be public officials. 24 P.S.
17- 1715 -A. To the contrary, the very fact that Sections 17- 1716 -A(c) and 17- 1727 -A o
the Charter School Law are specific in their references to the Sunshine Act and tort
liability, while Section 17- 1715 -A is broad and unqualified, supports the conclusion that
Section 17- 1715 -A is meant to encompass the Ethics Act. As for your remaining
arguments questioning the power of the General Assembly and asserting the need for
clarity when criminal enalties are applicable, such arguments would be for a court, not
this Commission, to decide.
Turning to the meaning of the word "organize," the Pennsylvania Supreme Court
has observed that the word "organized" is "susceptible of different uses . "
Commonwealth v. McGlinn Distilling Co., 265 Pa. 346, 350, 108 A. 823, 825 (1919).
The Court has provided a general definition: "To organize is to furnish with organs. An
organ is defined to be an instrument or medium by which an action is performed or an
object accomplished." Commonwealth v. William Mann Co., 150 Pa. 64, 70, 24 A. 601,
602 (1892). In the context of organizing a corporation, the Court has determined that
the word "organized" refers to the incorporation, the election of officers, the provision for
the subscription and payment of capital stock, the adoption of by -laws, "and such other
steps as are necessary to endow the legal entity with capacity to transact the legitimate
business for which it was created ...." Commonwealth v. McGlinn Distilling Co., supra,
265 Pa. 346, 350, 108 A. 823, 825; see also, Commonwealth v. William Mann Co.,
supra. In a case involving a school board, the Court interpreted the statutory phrase
"organized and acting under and in pursuance of the act" to mean school districts
accepting all of the provisions of the referenced act and therefore coming completely
under the system that it provided for their government. Copelin v. Board of School
Directors of the City of Harrisburg, 215 Pa. 359, 64 A. 542 (1906).
Dictionaries likewise provide numerous and varying meanings of the word
"organize," such as "to put together into an orderly, functional, structured whole," "to
form an organization," and "to make arrangements for something to happen." See, The
American Heritage Dictionary of the English Language, Fourth Edition (2000)Jonlir, ;
Merriam- Webster Online Dictionary; Cambridge Dictionaries Online.
Eiben, 04 -002
March 26, 2004
Page 11
What is clear from the above is that in order for a charter school to exist, various
forms of "organization" must occur on multiple levels through the actions of multiple
parties.
First, a public, nonprofit corporation must be organized. 24 P.S. §§ 17- 1703 -A;
17- 1720 -A. In the instant matter, the Charter School's parent organization was involved
in organizing the non - profit corporate entity that ultimately became the Charter School.
However, there is another, distinct level of organization that must occur in order
for a charter school to exist. Specifically, the local school district must issue a charter,
thereby creating the charter school. Pursuant to the Charter School Law, a charter
school does not exist absent the granting of a charter by the local school district, either
directly or through its deemed approval. 24 P.S. § 17- 1717 -A. It is the granting of the
charter by the local school district that "organizes" the charter school as opposed to the
mere corporate entity.
Since a charter school is organized by a school district's grant of a charter, a
charter school is a political subdivision as defined by the Ethics Act. Specifically, it is an
entity or body organized by another political subdivision, a local school district. Cf.,
Area Loan Organizations Under Capital Loan Fund Act, Opinions 95 -006, 95- 006 -R.
In the instant matter, the Charter School was organized by the School District of
the City of Erie through the grant of a charter. Since the Charter School was organized
by a political subdivision, it, too, is a political subdivision.
In reaching the above conclusions, we recognize that there could be different
factual scenarios involving different types of entities where the actions of a political
subdivision would not amount to organizing an entity. We need not and we do not
address such other scenarios today. Today we determine that the Charter School is a
political subdivision because it was clearly organized by another political subdivision,
the School District of the City of Erie.
Having determined that the Charter School is a political subdivision as defined by
the Ethics Act, we also need not address whether the Charter School would fall within
the definition of "governmental body" as set forth in the Ethics Act.
We shall now consider the status of the various persons about whom you have
inquired.
In applying the Ethics Act's definition of "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, one's status as a public official subject to the Ethics Act
is established, unless the exclusion for members of purely advisory boards is
applicable. 65 Pa.C.S. § 1102.
In order to be a "public employee" subject to the Ethics Act, an individual must
stand in an employer - employee relationship with the Commonwealth or a political
subdivision of the Commonwealth. Ver Ellen, Opinion 03 -005. Additionally, status as a
"public employee" subject to the Ethics Act is determined by an objective test, which
applies the statutory and regulatory definitions and criteria to the powers and duties of
the position itself. Typically, the powers and duties of the position are established by
objective sources that define the position, such as the job description, job classification
specifications, and organizational chart. Thus, the objective test considers what an
individual has the authority to do in a given position, rather than the variable functions
Eiben, 04 -002
March 26, 2004
Page 12
that the individual may actually perform in that position. See, Phillips, supra; Mummau
v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982); Shearer, Opinion 03 -011.
We have already determined that the Charter School is a political subdivision.
As we consider the status of the director /trustee on whose behalf you have inquired, the
necessary conclusion is that the director /trustee is a public official subject to the Ethics
Act. The basis for this conclusion is the fact that the director /trustee is an appointed
official of a political subdivision of the Commonwealth.
Likewise, the chief executive officer, chief educational officer, educational
administrators, and principal of the Charter School would all fall within the Ethics Act's
definition of public official because, under the facts that you have submitted, they are all
appointed officials of the Charter School. Most if not all of these individuals would also
fall within the Ethics Act's definition of "public employee," based upon a review of the
position descriptions that you have submitted. To the extent these positions are
employment positions, all, with the possible exception of the position of secretary,
clearly include activities where the official action has an economic impact of greater
than a de minimis nature on the interest of person(s), bringing these positions squarely
within the definition. 65 Pa.C.S. § 1102. As for the secretary, while the position is
within the Ethics Act's definition o public official and is therefore subject to the Ethics
Act, it is not possible to conclusively determine whether the additional status of "public
employee" applies, given vague language in the position description regarding
performing other duties as may be prescribed by the board or the executive director/
chief executive officer.
Given that a straightforward application of the key definitions of the Ethics Act
establishes that the persons about whom you have inquired are public officials /public
employees subject to the Ethics Act, we reject your argument that because Section 17-
1715-A only mentions trustees as being public officials, persons holding non - trustee
positions must be deemed to be beyond the scope of the Ethics Act. This Commission
is not aware of any instance in which a law referencing coverage under the Ethics Act
has listed all positions covered.
Finally, as for your own status under the Ethics Act in your capacity as Solicitor of
the Charter School, you are advised as follows. If as Solicitor you are an employee of
the Charter School, then you are a "public employee" subject to the Ethics Act. See,
P.J.S. v. State Ethics Commission, 697 A.2d 286 (Pa. Commw. 1997), aff'd., 555 Pa.
149, 723 A.2d 174 (1999). If, on the other hand, you are not an emTuRee of the
Charter School, but rather are retained, you would not be considered a "public official"
or a "public employee" as defined by the Ethics Act. See, C.P.C. v. State Ethics
Commission, 698 A.2d 155 (Pa. Commw. Ct. 1997), alloc. den., 704 A.2d 640 (Pa.
1997). However, all solicitors are required to file StatementsFinancial Interests. 65
Pa.C.S. § 1104(a)Yfoster, Opinion No. 98 -002. Therefore, regardless of whether you
would be considered a "public employee" as defined by the Ethics Act, you would be
required to file Statements of Financial Interests providing full disclosure as required by
the Ethics Act, each year the aforesaid position of solicitor is held and the year following
termination of service in said position.
In sum, it is the opinion of this Commission that: (1) the Charter School is a
political subdivision as defined by the Ethics Act; (2) the director /trustee of the Charter
School on whose behalf you have inquired is a "public official" subject to the Ethics Act;
(3) the appointed chief executive officer, chief educational officer, educational
administrators, and principal of the Charter School are public officials /public employees
subject to the Ethics Act; (4) as Solicitor for the Charter School, you are not a "public
employee" as defined by the Ethics Act unless you are an employee of the Charter
School; and (5) as Solicitor for the Charter School, you, like all other solicitors, are
required to file Statements of Financial Interests pursuant to Sections 1104 and 1105 of
the Ethics Act.
Eiben, 04 -002
March 26, 2004
Page 13
IV. CONCLUSION: A charter school is a political subdivision as defined by the
Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. 1101 et sew A
director /trustee of a charter school is a 'public official" subject to the Ethics AIct. The
appointed chief executive officer, chief educational officer, educational administrators,
and principal of a charter school are public officials /public employees subject to the
Ethics Act. A solicitor employed by a charter school is a "public employee' subject to
the Ethics Act. A solicitor retained but not employed by a charter school would not be
considered a "public official" or a "public employee" as defined by the Ethics Act. All
solicitors are required to file Statements of Financial Interests pursuant to Sections 1104
and 1105 of the Ethics Act.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
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.
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