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HomeMy WebLinkAbout25-508 SheaPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Nancy Shea Dear Ms. Shea: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL February 25, 2025 25-508 This responds to your letter dated February 15, 2025, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Facts: Whether an individual serving as an alternate Member of the Millcreek Township Government Study Commission would be considered a public official subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec ., and particularly, the requirements for filing Statements of Financial Interests. Brief Answer: YES. Although the Ethics Act's definition of the term "public official" excludes members of purely advisory boards lacking authority to expend public funds other than reimbursement for personal expense, the Members and alternate Members of the Millcreek Township Government Study Commission do not fall under this exclusion because the Millcreek Township Government Study Commission has the authority under the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. § 2901 et sec ., to expend public funds by appointing paid consultants and clerical and other assistants. Therefore, an individual serving as an alternate Member of the Millcreek Township Government Study Commission is a public official subject to the Ethics Act and the requirements for filing Statements of Financial Interests. You request an advisory from the Commission based upon the following submitted facts. You were recently appointed as an alternate Member of the Millcreek Township Government Study Commission ("Study Commission"). The Study Commission is tasked with studying the current three -Supervisor form of government of Millcreek Township ("Township") Shea, 25-508 February 25, 2025 Page 2 to determine whether a different form of government would better suit the Township and to make recommendations to the Township's voters. You are fourth in the line of succession of the named alternate Members of the Study Commission. Alternate Members do not participate in the government study meetings and have no voting power. Alternate Members are permitted to serve on committees, and you serve on the Outreach Committee, which assists with informing Township residents on the existence and progress of the Study Commission. The question that is posed by your advisory request is whether, as an alternate Member of the Study Commission, you are a public official subject to the Ethics Act and in particular, the requirements for filing Statements of Financial Interests. It is administratively noted that the Study Commission was established when the Township voters elected the seven Members of the Study Commission pursuant to the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. § 2901 et sec .. Members of the Study Commission serve without compensation but shall be reimbursed by the Township for their necessary duty -related expenses. See, 53 Pa.C.S. § 2919(a). Within the limits of the appropriations and other public and private funds made available to it, the Study Commission may appoint one or more paid consultants and clerical and other assistants. See, 53 Pa.C.S. § 2919(b). The Study Commission shall report its findings and recommendations to the Township citizens within the prescribed time frame and include in its report a detailed listing of the funds, goods, materials and services, both public and private, used by the Study Commission in the performance of its work. See, 53 Pa.C.S. § 2921(a). It is further administratively noted that per the meeting minutes posted on the Study Commission's website,1 at the Study Commission's January 13, 2025, regular meeting, Study Commission Member James DeDad stated that the Township budgeted $100,000 for the Study Commission. It is additionally noted that per the meeting minutes, the Study Commission: (1) voted to appoint a Recording Secretary at a total cost not to exceed $7,500 at its December 18, 2024, regular meeting; and (2) voted to approve a proposal from Allegheny League of Municipalities Public Partners Program for professional services for technical assistance at its January 2, 2025, special public meeting. 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 relevantto 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 'See, https://www.millcreektownship.com/426/Millcreek-Township-Government-Study-Comm. Shea, 25-508 February 25, 2025 Page 3 "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 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. (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. Shea, 25-508 February 25, 2025 Page 4 (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 parry 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. In applying the definition of the term "public official" to your position as an alternate Member of the Study Commission, 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 alternate Members of the Study Commission are appointed by the Study Commission, a governmental body, satisfies the first portion of the definition. It is noted that the Ethics Act does not exclude from the definition of "public official" an alternate member of a body. Shea, 25-508 February 25, 2025 Page 5 In considering the remainder of the definition, the necessary conclusion is that as an alternate Member of the Study Commission, you would not 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. Pursuant to Section 2919(b) of the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. § 2919(b), the Study Commission has the power to appoint one or more paid consultants and clerical and other assistants. Given this power and the fact that the minutes of Study Commission meetings reflect that the Study Commission voted to appoint a Recording Secretary at a cost not to exceed $7,500 and voted to execute a contract for consulting services, it is clear that the Study Commission has the power to expend public funds. Therefore, based upon the Ethics Act, the Regulations of the State Ethics Commission, and the Commission's Opinions, the necessary conclusion is that in your capacity as an alternate Member of the Study Commission, you are a "public official" subject to the provisions of the Ethics Act. See, Hetrick, Opinion 80-029. Therefore, you are required to file Statements of Financial Interests pursuant to the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under 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 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. Respectfully, Bridget K. Guilfoyle, Chief Counsel