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HomeMy WebLinkAbout05-593 WatsonRobert W. Watson, Ph.D., PE Department of Energy and Geo- Environmental Engineering The Pennsylvania State University 110 Hosier Building University Park, 16802 -5000 Re: Public Official; Statement of Financial Interests; Member; Oil and Gas Technical Advisory Board. Dear Mr. Watson: ADVICE OF COUNSEL November 15, 2005 The term "public official" is defined in the Ethics Act as follows: 05 -593 This responds to your letter dated September 29, 2005, by which you requested advice from the State Ethics Commission. Issue: Whether a member of the Oil and Gas Technical Advisory Board would be 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, and particularly, the requirements for filing Statements of Financial Interests. Facts: You are a member of the Oil and Gas Technical Advisory Board ( "Board "). You state that the Board was created by statute for the explicit purpose of providing to the Pennsylvania Department of Environmental Protection ( "DEP ") Bureau of Oil and Gas Management input on technical issues that might impact the oil and gas industry in the Commonwealth. You contend that Board Members are exempted from filing Statements of Financial Interests ( "SFIs ") because they fit within the exclusion for "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 Commonwealth or a political subdivision thereof." 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. You ask the State Ethics Commission to issue a notice that Board Members are exempt from filing SFIs. 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 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. Watson /Oil and Gas Technical Advisory Board, 05 -593 November 15, 2005 Page 2 § 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 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. (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. Watson /Oil and Gas Technical Advisory Board, 05 -593 November 15, 2005 Page 3 (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. It is administratively noted that the Oil and Gas Act, 58 P.S. § 601.101 et seq. provides in pertinent part as follows: § 601.216. Oil and Gas Technical Advisory Board (d) The [D]epartment of [Environmental Protection] shall consult with the board in the formulation, drafting and presentation stages of all regulations of a technical nature promulgated under this act. The board shall be given a reasonable opportunity to review and comment on all regulations of a technical nature prior to submission to the Environmental Quality Board for initial consideration. The written report of the board shall be presented to the Environmental Quality Board with any regulatory proposal. The chairman of the board shall be invited to participate in the presentation of all regulations of a technical nature before the Environmental Quality Board to the extent allowed by procedures of the Environmental Quality Board. Nothing herein shall preclude any member of the board from filing a petition for rulemaking with the Environmental Quality Board in accordance with procedures established by the Environmental Quality Board. 58 P.S. § 601.216.(d). Watson /Oil and Gas Technical Advisory Board, 05 -593 November 15, 2005 Page 4 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. The fact that Members of the Oil and Gas Technical Advisory Board are appointed 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. Pursuant to Section 601.216.(d) of the Oil and Gas Act, Members of the Oil and Gas Technical Advisory Board have the authority to, inter alia, review and comment on all regulations of a technical nature prior to submission to the Environmental Quality Board for initial consideration; participate in the presentation of all regulations of a technical nature before the Environmental Quality Board; and file a petition for rulemaking with the Environmental Quality Board. It is noted that participation in the rulemaking petition process is not limited to members of the Oil and Gas Technical Advisory Board, but is available to the general public. See, 25 Pa. Code § 23. In reviewing the foregoing statutory powers, the necessary conclusion is that the Oil and Gas Technical Advisory Board is an advisory board. Additionally, the Oil and Gas Technical Advisory Board lacks any authority under the Oil and Gas Act to expend public funds other than reimbursement for personal expense. 58 P.S. § 601.216.(b). Based upon the above, the necessary conclusion is that as a member of the Oil and Gas Technical Advisory Board, you are not considered a "public official" subject to the Ethics Act or the Regulations of this Commission, and you are 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. Conclusion: As a member of the Oil and Gas Technical Advisory Board, you are 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 you are not subject to the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. Act. The propriety of the proposed conduct has only been addressed under the Ethics 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. Watson /Oil and Gas Technical Advisory Board, 05 -593 November 15, 2005 Page 5 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