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HomeMy WebLinkAbout05-537 ColesDr. Herbert Cole, Jr. 4584 Cole Lane Petersburg, PA 16669 Phillip S. Coles Giorgi Mushroom Company Blandon Road, P.O. Box 96 Temple, PA 19560 Dr. Winand K. Hock 531 Blue Spring Lane Boalsburg, PA 16827 Samuel P. Evans GROW MARK 1606 Knob Run Road Duncansville, PA 16635 -3706 Dear Sirs: ADVICE OF COUNSEL April 15, 2005 Michael A. Fleming BASF 536 Woodview Drive Lititz, PA 17543 Fred Goldberg Pest Management Associates P.O. Box 542 Phoenixville, PA 19460 Richard Swiat 385 Wenschhof Road Fairfield, PA 17320 05 -537 Re: Public Official; Statement of Financial Interests; Member; Pesticide Advisory Board. This responds to your letters dated March 10, 2005, and April 1, 2005, by which you requested advice from the State Ethics Commission. Issue: Whether a Member of the Pesticide Advisory Board is 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, 51 Pa. Code § 11.1 et seq., and particularly, the requirements for filing Statements of Financial Interests. Facts: As Members of the Pesticide Advisory Board ( "Board "), you seek a determination as to whether you are "public officials" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. 1102; 51 Pa. Code § Statements You specifically question whether you are required to file tatements of Financial Interests pursuant to the Ethics Act. Factually, note that the Board was established by the Pennsylvania Pesticide Control Act of 1973 ( "Pesticide Control Act"), 3 P.S. § 111.21 et seq. The Board is comprised of governmental officials and employees and private- industry members. It is Cole / Coles /Hock/Fleminq /Goldberq /Swiat /Evans, 05 -537 April 15, 2005 Page 2 administratively noted that the Governor appoints all of the Board members. 3 P.S. § 111.45(a). You contend that as members of the Board, you are not public officials subject to the Ethics Act. You present arguments focusing upon the exception to the definition of the term "public official" as set forth in the Ethics Act and Commission Regulations, which excludes from the definition 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 a political subdivision. 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. First, you contend that the Board is a purely advisory board. You state that the purpose of the Board under Section 25(c) of the Pesticide Control Act, 3 P.S. § 111.45(c), is solely to advise the Secretary of Agriculture ( "Secretary ") on problems relating to the use and application of pesticides. Second, you maintain that the Board does not have the statutory authority to expend any public funds, and does not, in fact, expend any public funds. Referencing regulatory criteria for determining whether a body will be deemed to have the power to expend public funds, you argue that the Board does not "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." See, 51 Pa. Code § 11.1, definition of "public official," (i)(A). Third, you maintain that the Board does not have the statutory authority to otherwise exercise the power of the Commonwealth or a political subdivision thereof such as with respect to rulemaking. You state your understanding that an issue has arisen regarding certain language contained in § 16.2(3) of the Pesticide Act relating to the preparation of "standards" for a training program for Pesticide Application Technicians by the Board. 3 P.S. § 111.36b(3). You argue that while the Board may prepare the "standards" for the program, it does not have the authority to otherwise implement those standards, which authority you claim lies with the Secretary alone. You state that the private- industry members of the Board do not receive a per diem, reimbursement for mileage, or any other monetary benefit as a result of their participation on the Board. You express your belief that the private- industry members of the Board are dedicated to the safe use of pesticides within the Commonwealth of Pennsylvania. It is administratively noted that the Pesticide Control Act provides, in part: 111.36b. Registration of pesticide application technicians (1) Noncertified employes of any business engaged in applying pesticides to the lands of another or to any easement granted by the Commonwealth may apply pesticides only under the direct supervision of a certified applicator. (2) It shall be the duty of all licensees to register with the secretary their noncertified employes as pesticide application technicians when such employes are applying pesticides in situations where a certified applicator is not physically present on the site. In order to register those employes as pesticide application technicians, the licensee shall submit a Cole / Coles /Hock/Fleminq /Goldberq /Swiat /Evans, 05 -537 April 15, 2005 Page 3 form provided by the secretary. The postmark date shall designate the beginning of a training period of not less than thirty days which must elapse before registration is granted and the employe issued a pesticide application technician identification card by the department. During this period, and yearly thereafter, the employe shall engage in a training program which contains, as a minimum, the subject matter prescribed in regulations adopted by the secretary. An annual registration fee shall be charged by the department for issuance of the pesticide application technician identification card. (3) The training program for a pesticide application technician shall be administered by a qualified instructor to be determined by standards prepared by the Pesticide Advisory Board and involve subject matter similar to the commercial applicator's area of competence but of a more specific nature involving the assigned tasks of the technician. The training program shall include, but not be limited to: (i) Identification of pests relative to job responsibility. (ii) The proper use of pesticides and use of application equipment, including calibration and maintenance equipment used on the job. (iii) Protective clothing and respiratory equipment required during the application and handling of pesticides. (iv) Transportation and disposal of pesticides used in and around the workplace. (v) Applicable State and Federal regulations as they affect the work assignments. (4) Where there are noncertified employes engaged in the application of pesticides on a job site, they shall, at a minimum, be either of the following: (i) A crew composed solely of pesticide application technicians. (ii) A crew of noncertified or nonregistered employes working under the instruction and control of a certified commercial or public applicator who is physically present on the job site. 3 P.S. § 111.36b (Emphasis added). 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 Cole / Coles /Hock/Fleminq /Goldberq /Swiat /Evans, 05 -537 April 15, 2005 Page 4 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 (Emphasis added). 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 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. (11) The body exercises a basic power of government and performs essential governmental functions. (111) 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. Cole / Coles /Hock/Fleminq /Goldberq /Swiat /Evans, 05 -537 April 15, 2005 Page 5 (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. (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. 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. 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. In applying the first portion of the definition of "public official," 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 of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02 -007. The fact that you were appointed to the Board by the Governor satisfies the first portion of the definition. See, Cohen, Opinion 03 -006. Cole / Coles /Hock/Fleminq /Goldberq /Swiat /Evans, 05 -537 April 15, 2005 Page 6 As for the remainder of the definition, the necessary conclusion is that as Members of the Board, you would not fall within the statutory exception 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 a political subdivision. Although the Board does perform some advisory functions, for purposes of applying the Ethics Act, the Board goes beyond advisory functions. As noted above, the Pesticide Control Act provides in part: The training program for a pesticide application technician shall be administered by a qualified instructor to be determined by standards prepared by the Pesticide Advisory Board...." 3 P.S. § 111.36b(3) (Emphasis added). The statutory language is capable of multiple interpretations, specifically, that the Board has the statutory duty and authority to prepare standards for: (1) the training program; (2) the qualifications of the instructor; or (3) both the training program and the qualifications of the instructor. Under any of these interpretations however, the fundamental point is that the Board has the statutory authority to prepare standards, which goes beyond a purely advisory function. There is nothing in the statute that would suggest that any other person or entity has the authority in law to prepare such standards. This statutory authority is controlling over claims of what in fact" occurs (see, Williams /Pennington /Ray, Opinion 03- 002 -R), and it clearly meets the definition and related criteria by which status as a "public official" is determined. Finally, it is noted that the fact that Board Members are not compensated is irrelevant as a matter of law with respect to determining status as a "public official" subject to the Ethics Act and Commission Regulations. See, Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981). Therefore, based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light of your statutory authority as Members of the Board, the necessary conclusion is that each of you is a "public official" subject to the Ethics Act and the Regulations of the State Ethics Commission, and each of you is required to file Statements of Financial Interests pursuant to the Ethics Act. Conclusion: As Members of the Pesticide Advisory Board ( "Board "), each of you is a "public official" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, each of you must file a Statement of Financial Interests each year in which you hold the aforesaid position and the year following termination of such service. If you have not already done so, such Statements of Financial Interests must be filed 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 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. Cole / Coles /Hock/Fleminq /Goldberq /Swiat /Evans, 05 -537 April 15, 2005 Page 7 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