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HomeMy WebLinkAbout24-557 StinePHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Sandra Stine Dear Ms. Stine: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 August 28, 2024 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov 24-557 This responds to your letter dated July 29, 2024, by which you requested an advisory ftom the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Facts: Whether an individual would have a conflict of interest under Section I I 03(a) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C,S. § 1103(a), with regard to performing the duties of her position as a Member of the Heidelberg Township Park and Recreation Board as a result of her service as a Member of the Board of Directors of the Heidelberg Township Recreation Association. Brref ' Answer : NO. Based upon the submitted facts, in her capacity as a Member of the Heidelberg Township Park and Recreation Board, the individual is not a "public official" subject to the Ethics Act, Therefore, the individual would not have a conflict of interest under Section I I 03(a) of the Ethics Act with regard to performing the duties of her position as a Member of the Heidelberg Township Park and Recreation Board as a result of her service as a Member of the Board of Directors of the Heidelberg Township Recreation Association or for any other reason. You request an advisory from the Commission based upon the following submitted facts. You were recently appointed as a Member of the Heidelberg Township Park and Recreation Board ("the Park and Recreation Board"), which was created by Heidelberg Township Ordinance No, 2023-03 ("Ordinance No, 2023-03") as amended by Heidelberg Township Ordinance No, 2024-01 ("Ordinance No, 2024-01 "). You have submitted copies of the aforesaid Heidelberg Township Ordinances, which documents are incorporated herein by reference. Stine, 24-557 August 28, 2024 Page 2 Per Section 1 of Ordinance No. 2023-03, the Park and Recreation Board consists of five Members appointed by the Heidelberg Township Board of Supervisors. Members of the Park and Recreation Board are not compensated for their service. Section 4 of Ordinance No. 2023-03 sets forth the powers and duties of the Park and Recreation Board as follows: Section 4: Power and Duties The Board, in cooperation with other advisory bodies designated from time -to -time by the Board of Supervisors, shall advise and make recommendations to the Board of Supervisors with respect to planning, design, management, operations, improvement and activities of park, recreation and open space lands and programs in Heidelberg Township. The Board may adopt bylaws with the approval of the Board of Supervisors. The Board shall promote activities and programs that enhance the use and enjoyment of the park, recreation and open space lands in the Township. The Board shall participate in the initiation, review and recommending development of recreation areas and park facilities to the Board of Supervisors for approval and funding. The Board shall recommend to the Board of Supervisors, by September 1, a budget for equipping, operation and maintaining recreation places and facilities in the Township. The Board shall not have the power to amend, adopt, alter, repeal or change any rules and regulations that govern the use of the park(s) by the public that have been adopted by the Board of Supervisors. The Board of Supervisors shall have the power to adopt rules and regulations for the operation of the parks and recreation places in the Township. Heidelberg Township Ordinance No. 2023-03, Section 4. Per Section 3 of Ordinance No. 2023- 03, the Park and Recreation Board shall not have authority to enter into any contracts or to incur any obligations binding upon Heidelberg Township. In addition to serving on the Park and Recreation Board, you are a Member of the Board of Directors of the Heidelberg Township Recreation Association ("the Association"), which is a non-profit 501(c)(3) corporation. The Association was formed to raise and solicit funds to assist in the development and maintenance of recreational facilities for the residents of Heidelberg Township and to promote the use of such facilities for the enjoyment of Heidelberg Township residents and others. Stine, 24-557 August 28, 2024 Page 3 Based upon the above submitted facts, you seek guidance as to whether you would have a conflict of interest with regard to performing the duties of your position as a Member of the Park and Recreation Board as a result of your service as a Member of the Board of Directors of the Association. 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 issue to be addressed is whether you are public official in your capacity as a Member of the Park and Recreation Board. 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 terra "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; Stine, 24-557 August 28, 2024 Page 4 (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: (1) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (1I) 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. Stine, 24-557 August 28, 2024 Page 5 (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. In applying the definition of the term "public official" to your position as a Member of the Park and Recreation Board, 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 02-607. The Park and Recreation Board is a "political subdivision" as that term is defined by the Ethics Act. The fact that Members of the Park and Recreation Board are appointed by the Heidelberg Township Board of Supervisors satisfies the first portion of the definition. In considering the remainder of the definition, the necessary conclusion is that as a Member of the Park and Recreation Board, 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. In considering the duties and responsibilities of the Park and Recreation Board as delineated in Ordinance No. 2023-03 as amended by Ordinance No. 2024-01, it is clear that the Park and Recreation Board is a purely advisory board. Therefore, in your capacity as a Member of the Park and Recreation Board, you are not a "Public official" as that term is defined by the Ethics Act. Accordingly, you would not have a conflict of interest under Section 1103(a) of the Ethics Act with regard to performing the duties of Stine, 24-557 August 28, 2024 Page 6 your position as a Member of the Park and Recreation Board as a result of your service as a Member of the Board of Directors of the Association or for any other reason. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(l 1) 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 received at the Commission within thirty (30) days of the date of this Advice pursuant to S 1 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