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HomeMy WebLinkAbout04-532 FallicaJane C. Pomerantz, Esquire Deputy Chief Counsel Office of Chief Counsel Employment Security Division 10 Floor, Labor & Industry Building Seventh and Forster Streets Harrisburg, PA 17121 Dear Ms. Pomerantz: ADVICE OF COUNSEL April 26, 2004 Re: Public Official; SFI; Member; Local Workforce Investment Board. 04 -532 This responds to your letter dated March 24, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether a member of a local workforce investment board would be considered a "public official" subject to 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, and particularly, the requirements for filing Statements of Financial Interests. Facts: As Deputy Chief Counsel for the Department of Labor and Industry ( "L & I "), you seek an advisory on behalf of Margaret Fallica ( "Fallica "), an L & I employee. In addition to being employed by L & I, Fallica serves as a member of the Westmoreland/ Fayette Workforce Investment Board. You have submitted an attachment containing, inter alia, provisions of the federal Workforce Investment Act of 1988 ("Workforce Investment Act'), 29 U.S.C. § 2801 et sect. and the Pennsylvania Workforce Development Act ( "Workforce Development Act'), 24 P.S. § 6250.101 et seq., which attachment is incorporated herein by reference. It is administratively noted that the Workforce Investment Act is a federal statute, the purpose of which is to "provide workforce investment activities, through statewide and local workforce investment systems, that increase the employment, retention, and earnings of participants, and increase occupational skill attainment by participants, and, as a result, improve the quality of the workforce, reduce welfare dependency, and enhance the productivity and competitiveness of the Nation." 29 U.S.C. § 2811. The Workforce Investment Act authorizes the Governor to establish in each local area of a state, a local workforce investment board to be certified by the Governor, to set policy Pomerantz /Fallica 04 -532 April 26, 2004 Page 2 for the portion of the Statewide workforce investment system within the local workforce investment system. 29 U.S.C. § 2832. In addition, the Workforce Investment Act authorizes the chief elected official in the local area to appoint the members of the local workforce investment board. 29 U.S.C. § 2832(c). It is further administratively noted that the Workforce Development Act establishes a local workforce investment board in each local workforce investment area of the Commonwealth to "advise and assist the chief elected official in the county or counties served by the local workforce investment board by setting policy to promote effective workforce investment programs in a designated geographic area. 24 P.S. § 6250.501. Members of a local workforce investment board are appointed by the "chief elected official of the city, county or counties that participate in the local workforce investment board." 24 P.S. 6250.502. Each member of the Westmoreland /Fayette Workforce Investment Board - is appointed by that member's home county's board of commissioners. The question you pose is whether Fallica, solely in her capacity as a Member of the Westmoreland /Fayette Workforce Investment Board, would be considered a "public official" as that term is defined in the Ethics Act and the Regulations of the State Ethics Commission. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1'107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which liave 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 advisory only addresses the conduct of those individuals who have specifically given you their permission to submit your inquiry on their behalf. As to all others, you are considered a third party without legal standing. 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 Pomerantz /Fallica 04 -532 April 26, 2004 Page 3 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 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. Pomerantz /Fallica 04 -532 April 26, 2004 Page 4 (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 first portion of the Ethics Act's definition of "public official" to the above, a public official is a person who: (1) is elected by the public; (2) is elected or appointed by a governmental body; or (3) is an appointed official in the executive, legislative or judicial branch of the Commonwealth or a political subdivision of the Commonwealth. Muscalus, Opinion 02 -007. Pursuant to the Workforce Development Act, a member of a local workforce investment board is appointed by the "chief elected official" of the city, county or counties that participate in the local workforce investment board. 24 P.S. § 6250.502(b). The definition of "chief elected official" under the Workforce Development Act includes the following: the mayor of a city of the first or second class; the chair of the board of commissioners of a county or an individual acting in that capacity; the county executive in a home rule charter county or optional plan county; and the county executive in a county of the second class which has opted for a home rule under the Second Class County Code. 24 P.S. 6250.103. Given the foregoing statutory provisions, it is clear that Fallica, as a Member of the Westmorland/ Fayette Workforce Investment Board, would satisfy the first portion of the Ethics Act's definition of "public official" as a person who is appointed by a governmental body. In considering the remainder of the definition, Fallica as a Member of the Westmoreland /Fayette Workforce Investment Board would not fall within the statutory exception for members of purely advisory boards. Pursuant to the Workforce Investment Act, the functions of a local board include, inter alia, developing and submitting a local plan to the Governor; designating or certif ing one -stop operators and terminating for cause the eligibility of such operators; awarding grants or contracts on a competitive basis; developing a budget to carry out the duties of the local workforce investment board subject to the approval of the chief elected official; directing the local grant recipient to disburse grant funds for workforce investment activities; employing staff; soliciting and accepting grants and donations from sources other than Federal funds; and assisting the Governor in developing the statewide employment statistics system. See, Workforce Investment Act, 29 U.S.C. § 2832(d). Further, the Workforce Development Act provides that the responsibilities of a local workforce investment board include, inter alia, developing and implementing a unified workforce investment plan; authorizi g9tie use of local workforce investment funds; and assisting in establishing eligibility for welfare -to -work activities under section 403(a)(5) of the Social Security Act and programs of financial aid assistance. See, Workforce Development Act, 24 P.S. § 6250.504(b). Given the foregoing functions, the Westmoreland /Fayette Workforce Investment Board would be not be a purely advisory board, and Fallica, as a Board Member, would not fall within the advisory board exception. Status as a "public official" subject to the Ethics Act is determined by applying the above definition and criteria to the position held. The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions, and See, Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Furthermore, the Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. Pomerantz /Fallica 04 -532 April 26, 2004 Page 5 Based upon the foregoing judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light of Fallica's duties and responsibilities as an appointed Member of the Westmoreland /Fayette Workforce Investment Board, the necessary conclusion is that she is a "public official" subject to the financial reporting and disclosure requirements of the Ethics Act. Conclusion: As an appointed Member of the Westmoreland /Fayette Workforce Investment Board, Margaret Fallica ( "Fallica ") is to be considered a "public official" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, Fallica must file a Statement of Financial Interests each year in which she holds the aforesaid position and the year following her termination of such service. If Fallica has not already done so, she must file a Statement of Financial Interests within 30 days of this Advice. Pursuant to Section 1107(11), 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 requestor 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 received at 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. Sincerely, Vincent J. Dopko Chief Counsel