HomeMy WebLinkAbout05-006 HockOPINION OF THE COMMISSION
Dr. Herbert Cole, Jr.
4584 Cole Lane
Petersburg, PA 16669
Dr. Winand K. Hock
531 Blue Spring Lane
Boalsburg, PA 16827
Gentlemen:
I. ISSUE:
Before:
Phillip S. Coles
Giorgi Mushroom Company
Blandon Road, P.O. Box 96
Temple, PA 19560
DATE DECIDED: 6/7/05
DATE MAILED: 6/17/05
Re: Public Official; Statement of
Board; Appeal of Advice.
Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
Reverend Scott Pilarz
Walter A. Lyon
5225 Wilson Lane
Apartment 2111
Mechanicsburg, PA 17055
Fred Goldberg
Pest Management Associates
P.O. Box 542
Phoenixville, PA 19460
Richard J. Swiat, Manager
AG AIR, LLC
P.O. Box 70
Dover, PA 17315
05 -006
Financial Interests; Member; Pesticide Advisory
This Opinion is issued in response to the appeal of Cole/Coles/Hock/Fleming/
Goldberq /Swiat /Evans, Advice of Counsel 05 -537, which was issued on April 15, 2005.
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
Cole /Coles /Hock/Goldberq /Swiat/Lyon (Pesticide Advisory Board), 05 -006
June 17, 2005
Page 2
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.
II. FACTUAL BASIS FOR DETERMINATION:
By letters dated May 3 -8, 2005, you appealed Cole /Coles /Hock/Fleminq /Goldberg/
Swiat /Evans, Advice of Counsel 05 -537 issued April 15, 2005.
The initial letters requesting an advisory submitted the following facts. The
Pesticide Advisory Board ( "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. 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 participation on the Board.
The advisory request letters referenced the following provisions of the Pesticide
Control Act, which provisions define the duties and authority of the Board:
§ 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 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.
Cole /Coles /Hock/Goldberq /Swiat/Lyon (Pesticide Advisory Board), 05 -006
June 17, 2005
Page 3
(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).
§ 111.45. Pesticide Advisory Board
(c) The board shall advise the secretary on any or all
problems relating to the use and application of pesticides.
This may include pest control problems, environmental or
health problems related to pesticide use, and review of needed
legislation, regulations and agency programs.
3 P.S. § 111.45(c).
The advisory request letters presented arguments aimed at establishing that Board
members would fall within the exception to the definition of the term "public official" set
forth in the Ethics Act and Commission Regulations, which exception excludes 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 thereof (65 Pa.C.S. § 1102; 51 Pa. Code § 11.1). The specific arguments
presented were as follows:
(1) That the Board is a purely advisory board with the sole
purpose of advising the Secretary of Agriculture
( "Secretary ") on problems relating to the use and
application of pesticides (referencing 3 P.S. §
111.45(c));
That the Board does not have the statutory authority to
expend any public funds, and does not, in fact, expend
any public funds;
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
(2)
(3)
Cole /Coles /Hock/Goldberq /Swiat/Lyon (Pesticide Advisory Board), 05 -006
June 17, 2005
Page 4
In responding to the advisory requests, the Advice of Counsel administratively noted
that the Governor appoints all of the Board members. Advice of Counsel, 05 -537, at 1 -2
(citing 3 P.S. § 111.45(a). The Advice of Counsel determined that the fact that Board
members are appointed by the Governor would satisfy the first portion of the Ethics Act's
definition of "public official." Id. at 5 (citing Cohen, Opinion 03 -006).
The Advice of Counsel also determined that based upon the above - quoted
language of 3 P.S. § 111.36b(3), the requesters would not fall within the statutory
exception for members of purely advisory boards. Advice of Counsel, 05 -537, at 6. While
the Advice of Counsel stated that the aforesaid 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, the Advice concluded:
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.
Id.
staff, purchase, lease, acquire or sell real or personal
property" (referencing 51 Pa. Code § 11.1, definition of
"public official" (i)(A));
(4) 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; and
That although § 16.2(3) of the Pesticide Control Act
relating to the preparation of "standards" for a training
program for Pesticide Application Technicians by the
Board (3 P.S. § 111.36b(3)) authorizes the Board to
prepare the "standards" for the program, the Board
does not have the authority to otherwise implement
those standards, which authority lies with the Secretary
alone.
(5)
The Advice of Counsel additionally stated 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. Advice of Counsel, 05 -537,
at 6 (citing Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981)).
The Advice of Counsel concluded that as members of the Board, each of the
requesters would be a "public official" subject to the Ethics Act and this Commission's
Regulations. Each requester was advised that he must file a Statement of Financial
Interests each year in which he holds the aforesaid position and the year following
termination of such service. Advice of Counsel, 05 -537, at 6.
Through the various letters by which you have appealed Advice of Counsel 05 -537,
you have proffered the following arguments /points:
Cole /Coles /Hock/Goldberq /Swiat/Lyon (Pesticide Advisory Board), 05 -006
June 17, 2005
Page 5
That the Board does not set standards or establish
standards;
That Advice of Counsel 05 -537 erroneously relied upon
the provision at 3 P.S. § 111.36b(3) and gave the
"standards prepared by" phraseology greater weight
and authority than was intended by the General
Assembly;
(4) That the phraseology "standards prepared by" as it
appears in the Pesticide Control Act at 3 P.S. § 111.36b
simply means, to make ready; put in condition for
something," specifically, approval or rejection by the
Secretary;
That the conclusion in Advice of Counsel 05 -537 that
"[t]here is nothing in the statute that would suggest that
any other person or entity has the authority in law to
prepare such standards" fails to acknowledge what you
describe as the complete and sole statutory authority of
the Secretary to regulate every facet of the pesticide
industry, including the preparation and approval of
program standards;
(6) That the conclusion of the Advice of Counsel
disregards the express statutory language of the Act,
which, you contend, when read in its entirety, states
that the Board shall advise the Secretary;
That the Board has no authority to go beyond an
advisory role;
(8) That § 128.51 of the Department of Agriculture's
Pesticide Regulations (7 Pa. Code § 128.51) evidences
that the aforesaid standards were prepared and
promulgated under the express authority of the
Secretary, not the Board; and
That preparing standards for the Secretary's review
does not rise to the level of exercising the power of the
State.
(5)
(7)
(
That since its inception, the Board has in fact acted
only as advisors to the Secretary pursuant to § 25(c) of
the Pesticide Control Act (3 P.S. § 111.45(c));
We take administrative notice of Section 128.51 of the Department of Agriculture's
Pesticide Regulations (7 Pa. Code § 128.51), which Section you have cited and which
provides as follows:
§ 128.51. Training program.
(a) A pesticide application technician shall obtain
instruction in, and possess adequate knowledge of, the proper
use and handling of pesticides. The training program shall
include:
Cole /Coles /Hock/Goldberq /Swiat/Lyon (Pesticide Advisory Board), 05 -006
June 17, 2005
Page 6
(1) Those areas of knowledge described in
section 16.2 of the act (3 P.S. § 111.36b).
(2) Spill handling.
(3) Human health and environmental effects.
(b) The technician training program shall include a
sufficient level of on- the -job training to allow the technician to
competently perform the functions associated with an
application of pesticides in which the technician is anticipated
to be involved.
(c) A technician is not permitted to make a pesticide
application using techniques, pesticides or equipment not
included in his training.
(d) A technician shall undergo annual training to assure
that his knowledge is adequate for satisfactory completion of
his work related duties.
(e) A certified applicator with at least 1 year's experience in
the categories in which the technician is to be trained shall be
responsible for administering the training program. This
person shall develop a training program which includes the
appropriate level of training needed by the technician to
satisfactorily complete work related duties subject to
disapproval by the Department.
7 Pa. Code § 128.51.
By letters dated May 11 -12, 2005, you were notified of the date, time and location of
the public meeting at which your appeal would be considered.
At the public meeting on June 7, 2005, various individuals appeared and offered
commentary, which may be fairly summarized as follows.
Dr. Herbert Cole, Jr. stated that he has served as a member and Chairman of the
Board for approximately 35 years. Dr. Cole stated that during his tenure on the Board, the
Board has always been advisory to the Secretary and has never promulgated regulations
or any items of fact or acted as the final authority with regard to pesticide rules or
regulations. He suggested that there might be another advisory board affected by this
decision.
Richard Swiat, a Board member representing the private sector as a crop duster,
commented that if private individuals are required to file Statements of Financial Interest,
they might not be willing to volunteer their services, resulting in a loss of accurate input.
He stated that he is willing to give up his time to offer his expertise as a Board member, but
that he does not gain anything from it, does not expect to gain anything from it, and does
not want to have to complete Statements of Financial Interests. He further noted that
Board meetings might be attended by the public.
Attorney Jorge M. Augusto appeared on behalf of the Pennsylvania Department of
Agriculture and argued that private individuals serving on the Pesticide Advisory Board
should not be required to file Statements of Financial Interest. He argued that requiring
the private sector members of the Board to file Statements of Financial Interest would have
Cole /Coles /Hock/Goldberq /Swiat/Lyon (Pesticide Advisory Board), 05 -006
June 17, 2005
Page 7
a chilling effect that would discourage such members from continuing to provide their
voluntary public service. He noted that such individuals impart significant knowledge and
advice from the private sector to the Secretary, without which the Secretary would not be
able to discharge his duties. Attorney Augusto assured this Commission that there is no
personal gain derived through service on the Board. He argued that the Pesticide Control
Act must be read in its entirety, and that when one reads the statute in its entirety, the
Board merely advises the Secretary, while only one individual (the Secretary) has all the
authority. He stated that the Board takes no action, takes no money, and does not expend
funds. He further contended that the Board does not prepare standards for the training
program for pesticide application technicians, which standards he maintained were
promulgated by the Secretary of Agriculture under the Secretary's statutory authority.
Attorney Augusto argued that it would be error to determine that the Board members are
public officials through a misconstruction of one sentence in the entire Pesticide Control
Act. While Attorney Augusto noted a potential impact upon other advisory boards, he
maintained that this Commission could reach a narrow decision applicable only to the
Board based upon the Pesticide Control Act.
John Tacelosky, a member of the Board and Chief of the Health and Safety Division
within the Pennsylvania Department of Agriculture's Bureau of Plant Industry, stated that
Board members simply provide advice from their areas of expertise. He stated that he
knows of no Board member who has dealings with the Commonwealth, although there
might be some instances where a Board member's employer would be involved in
transactions with the Commonwealth.
III. 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, this 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.
Our review of this matter is de novo (Clarke, Opinion 04 -012; Spear, Opinion 04-
011): "De novo review entails, as the term suggests, full consideration of the case anew.
The reviewing body is in effect substituted for the prior decision maker and redecides the
case." D'Arciprete v. D'Arciprete, 323 Pa. Super. 430, 470 A.2d 995 (1984) (citations
omitted). See also, Hayes v. Donohue Designer Kitchen, Inc., 2003 Pa. Super. 84, 818
A.2d 1287 (2003); Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983); In re
Audit of School District, 354 Pa. 232, 47 A.2d 292 (1946).
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.
Cole /Coles /Hock/Goldberq /Swiat/Lyon (Pesticide Advisory Board), 05 -006
June 17, 2005
Page 8
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:
(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.
(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
Cole /Coles /Hock/Goldberq /Swiat/Lyon (Pesticide Advisory Board), 05 -006
June 17, 2005
Page 9
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.
The Advice of Counsel correctly stated that 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. Cmwlth. 1984). 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, Id.
In applying the Ethics Act's definition of "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, one's status as a public official subject to the Ethics Act is
established, unless the exclusion for members of purely advisory boards is applicable. 65
Pa.C.S. § 1102. Eiben, Opinion 04 -002.
As noted in Advice of Counsel 05 -537, the fact that you were appointed to the Board
by the Governor satisfies the first portion of the definition. See, Cohen, Opinion 03 -006.
The remaining question is whether the exclusion for members of purely advisory boards is
applicable to you.
In reviewing the statutory provisions that define the duties and authority of the
Board (3 P.S. §§ 111.45(c) and 111.36b(3)), the only authority of the Board that could be
argued to be non - advisory is delineated by the following language in the Pesticide Control
Act: 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).
Your status under the Ethics Act hinges upon the nature of the authority conveyed
by the above statutory language. Although this Commission, in the exercise of its
jurisdiction, is limited to making determinations under the Ethics Act, it is necessary that we
review this language in order to ensure a correct application of the Ethics Act.
Cole /Coles /Hock/Goldberq /Swiat/Lyon (Pesticide Advisory Board), 05 -006
June 17, 2005
Page 10
We are guided by the requirements for statutory construction. The object of all
interpretation and construction of statutes is to ascertain and effectuate the intention of the
General Assembly," and "[e]very statute shall be construed, if possible, to give effect to all
its provisions." 1 Pa.C.S. § 1921(a). Non - technical, non - peculiar words and phrases of a
statute are to be construed according to rules of grammar and their common and approved
usage. 1 Pa.C.S. § 1903(a).
The words "prepare" and "standard" are not defined by the Pesticide Control Act, 3
P.S. § 111.24, or by the Statutory Construction Act, 1 Pa.C.S. § 1991. Additionally, there
does not appear to be any Pennsylvania decision interpreting either of these terms in a
relevant or analogous context. The common and approved usage of the word "prepare" is:
To provide with necessary means; to make ready; to provide with what is appropriate or
necessary." Black's Law Dictionary at 1064 (5 ed. 1979). The common and approved
usage of the word "standard" is: "A model accepted as correct by custom, consent, or
authority," or "[a] criterion fQr measuring acceptability, quality, or accuracy." Black's Law
Dictionary at 1412 -1413 (7 ed. 1999).
In considering the above, the Advice of Counsel reached a conclusion based upon
the language to be determined by standards prepared by the Pesticide Advisory Board" at
3 P.S. § 111.36b(3), which language is capable of multiple meanings. With the clarity that
has been afforded through this appeal, the correct meaning would be the preparation of
proposed criteria for consideration by the Secretary, as opposed to any final determination
by the Board of such criteria.
In preparing standards for the training program for pesticide application technicians
and /or for the qualifications of the program instructor, the Board has no authority to compel
the implementation of such standards. The Board does not make decisions that are
binding upon the Secretary, nor does it make independent decisions that are effective
without approval of the Secretary. The Board's authority does not fall within this
Commission's regulatory criteria for identifying boards that go beyond a purely advisory
function. 51 Pa. Code § 11.1 (definition of "public official," (i)(B)).
Based upon the above analysis, we grant the appeal and reverse Cole /Coles /Hock/
Fleming /Goldberg /Swiat /Evans, Advice of Counsel 05 -537. We hold that a member of the
Pesticide Advisory Board is not considered a "public official" subject to the Ethics Act or
the Regulations of this Commission, and is not subject to the requirements for filing
Statements of Financial Interests pursuant to the Ethics Act.
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
IV. CONCLUSION:
A member of the Pesticide Advisory Board is not considered a "public official"
subject to the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101
et seq., or the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq.,
and is not subject to the requirements for filing Statements of Financial Interests pursuant
to the Ethics Act. Advice of Counsel 05 -537 is reversed.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Pursuant to Section 1107(10), the person who acts in good faith on this Opinion
issued to him shall not be subject to criminal or civil penalties for so acting provided the
material facts are as stated in the request.
This letter is a public record and will be made available as such.
Cole /Coles /Hock/Goldberq /Swiat/Lyon (Pesticide Advisory Board), 05 -006
June 17, 2005
Page 11
Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the
mailing date of this Opinion. The party requesting reconsideration must include a detailed
explanation of the reasons as to why reconsideration should be granted in conformity with
51 Pa. Code § 21.29(b).
By the Commission,
Louis W. Fryman
Chair