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HomeMy WebLinkAbout26-511 JacobsonPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 304 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL February 24, 2026 To the Requester: Sara Jacobson, Esquire Dear Ms. Jacobson: 26-511 This responds to your letter dated January 29, 2026, received February 9, 2026, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the issue presented below: Issue: Whether, as a Member and Chairperson of the Indigent Defense Advisory Committee ("IDAC") within the Pennsylvania Commission on Crime and Delinquency ("PCCD"), you are a "public official" subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec .. Brief Answer: NO. Based upon the submitted facts, as a Member and Chairperson of the IDAC, you are not a "public official" subject to the provisions of the Ethics Act. Facts: As a Member and Chairperson of the IDAC, you request an advisory from the Commission based upon the following submitted facts. The IDAC is established within the PCCD as per the Fiscal Code. See, 72 P.S. § 203-F. The IDAC is comprised of: (1) the Commonwealth Victim Advocate and the executive directors of five commissions or associations, who shall serve as ex officio and nonvoting members; (2) the Executive Director of the Public Defender Association of Pennsylvania; (3) four individuals appointed by the President pro tempore of the Pennsylvania Senate, the Minority Leader of the Pennsylvania Senate, the Speaker of the Pennsylvania House of Representatives, or the Minority Leader of the Pennsylvania House of Representatives; (4) eight individuals appointed by the Governor; and (5) three judges and four public defenders appointed by the Chief Justice of the Jacobson, 26-511 February 24, 2026 Page 2 Pennsylvania Supreme Court. See, 72 P.S. § 203-F(b). Members of the IDAC do not receive a salary or per diem allowance for serving as IDAC Members but are reimbursed for actual and necessary expenses incurred in the performance of their duties. See, 72 P.S. § 203-F(g). The Chairperson of the IDAC is selected by the Governor. See, 72. P.S. § 203-17(c). The IDAC has the following statutory duties and responsibilities: § 203-F(i). Duties and responsibilities. With the review and approval of the [PCCD], the committee shall have the following duties and responsibilities: (1) Propose minimum standards for the delivery of effective indigent defense services throughout this Commonwealth that are consistent with the requirements of the Constitution of the United States and the Constitution of Pennsylvania. (2) Propose minimum standards for attorneys providing indigent defense services to ensure that the ability, training and experience of the attorneys match the cases assigned to the attorneys. (3) Submit proposed standards to the Pennsylvania Supreme Court for adoption through a manner prescribed by the Supreme Court. (4) Identify, develop or provide appropriate Statewide continuing legal education courses, practical training programs and skill development resources, including preservice training for newly hired public defenders, public defender staff attorneys, assigned counsel and contract public defenders and other counsel who provide indigent defense services. (5) Identify, develop or provide appropriate programs for capital case defense skills training, adult criminal defense training, juvenile delinquency defense training and management and leadership training for chief defenders and public defender office leaders and other counsel who provide indigent defense services. (6) Establish a virtual defender training library consisting of all programs approved by the committee. Jacobson, 26-511 February 24, 2026 Page 3 (7) Adopt standards by which counties shall collect and report, at a minimum, the following to the committee: (i) The caseload and workload of each attorney in the county's public defender office. (ii) The caseload and workload of attorneys who are assigned to represent an indigent defendant as conflict counsel or contract counsel in the county. (iii) The total expenditures and per capita spending for indigent criminal defense services in the county. (8) Adopt standards for the use of case management systems or software by county public defender offices. (9) Develop, in partnership with the Administrative Office of Pennsylvania Courts and the Juvenile Court Judges' Commission, data requests that include, at a minimum, the following: (i) The total number of criminal cases involving a public defender by category of criminal offense and by county. (ii) The total number of criminal cases adjudicated or closed involving a public defender by category of disposition type and by county. (iii) The total number of juvenile delinquency cases involving a public defender by category of offense and by county. (iv) The total number of juvenile delinquency cases adjudicated or closed involving a public defender by category of disposition type and by county. (v) The total number of criminal cases with a court appointed attorney, not a public defender. Jacobson, 26-511 February 24, 2026 Page 4 (vi) The total number of juvenile delinquency cases with a court appointed attorney, not a public defender. (vii) The total number of criminal and juvenile delinquency cases appealed involving a public defender by county. (10) Partner with other departments or agencies for the collection of data related to the delivery of indigent defense services, as may be required by the committee. (11) Analyze the data to identify trends and overall effectiveness of indigent defense services in the State and the impact of the standards adopted on the effectiveness of indigent defense services in the future. (12) Prepare a report which includes, at a minimum, the actions of the committee, details of grants awarded, summaries of data collected with statistics regarding the delivery of indigent defense services and recommendations for improvement of the indigent defense system in this Commonwealth. The report shall be submitted two years from the effective date of this section and biennially thereafter. The report shall be published on the commission's publicly accessible Internetwebsite. A copy of the report shall be submitted to the Governor, the chair and minority chair of the Judiciary Committee of the Senate, the chair and minority chair of the Judiciary Committee of the House of Representatives, the chair and minority chair of the Appropriations Committee of the Senate, the chair and minority chair of the Appropriations Committee of the House of Representatives and the Pennsylvania Supreme Court. (13) Perform functions related to the direct approval and disbursement of grants under the Indigent Defense Grant Program established under subsection (k) in an advisory capacity only. 72 P.S. § 203-F(i). In performing its advisory functions related to the direct approval and disbursement of grants under the Indigent Defense Grant Program, the IDAC "shall have the opportunity to review and comment on grant applications and shall ensure that grant funding or Jacobson, 26-511 February 24, 2026 Page 5 services provided under the program are geographically dispersed throughout this commonwealth." 72 P.S. § 203-17(k)(3). Any IDAC recommendations regarding grant funding are forwarded to the PCCD, which ultimately votes on the grant applications. You state that in 2024, the IDAC formed subcommittees to assist with its work and provide recommendations with regard to the IDAC's statutorily required duties. The IDAC currently operates with three subcommittees. The subcommittees are composed of the IDAC Chairperson, the IDAC Chairperson, other Members of the IDAC, and volunteers who are not Members of the IDAC. You serve on the IDAC due to your professional role as the Executive Director of the Public Defender Association of Pennsylvania. You were appointed as Chairperson of the IDAC by the Governor. As Chairperson, you serve on each of the IDAC's subcommittees. In addition to serving on the IDAC, you serve on the PCCD as an appointee of the Governor. If you are unable to attend a meeting of the PCCD, you ask the Vice Chairperson of the IDAC to attend the meeting to represent the IDAC. If the Vice Chairperson is unable to attend the PCCD meeting, PCCD staff designated to support the IDAC report on the IDAC's work. You ask whether, in your capacity as a Member and Chairperson of the IDAC, you are a "public official" subject to the Ethics Act. You further seek guidance as to whether your membership on any of the IDAC subcommittees, as either a Member and Chairperson of the IDAC or a volunteer, would cause you to be a "public official" as that term is defined by the Ethics Act. You additionally ask whether a request by you as Chairperson of the IDAC that another Member of the IDAC attend a meeting of the PCCD in your place would cause the Member, as a result of attending the meeting, to be considered a "public official" and if so, whether that status would apply to the Member only for the meeting or indefinitely. 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 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 "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 Jacobson, 26-511 February 24, 2026 Page 6 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. (II) 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. Jacobson, 26-511 February 24, 2026 Page 7 (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 Ethics Act's definition of the term "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, status as a public official subject to the Ethics Act is established, unless the exclusion for members of purely advisory boards is applicable. Eiben, Opinion 04-002. Conclusion: In considering the definition of the term "public official," the necessary conclusion is that as a Member and Chairperson of the IDAC, you would fall within the statutory exclusion for members of purely advisory boards lacking authority to expend public funds other than Jacobson,26-511 February 24, 2026 Page 8 reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. It is clear that the duties and responsibilities of the IDAC as delineated in Section 203-F(i) of the Fiscal Code are purely advisory. Accordingly, in your capacity as a Member and Chairperson of the IDAC, you are not a "public official" as that term is defined by the Ethics Act. Because the IDAC is a purely advisory board, it necessarily follows that your membership on any of its subcommittees, as either a Member and Chairperson of the IDAC or a volunteer, would not bring you within the Ethics Act's definition of the term "public official." Additionally, because the statutory composition of the PCCD does not include the Chairperson of the IDAC or a designee (see, 71 P.S. § 1190.22), a request by you as Chairperson that another Member of the IDAC attend a meeting of the PCCD in your place would not cause the Member, as a result of attending the meeting, to be considered a "public official" subject to the Ethics Act. (It is noted that your status as a Member of the PCCD as an appointee of the Governor is for purposes of the Ethics Act separate and apart from your status as a Member and Chairperson of the IDAC.) The propriety of the proposed conduct only has been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of 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