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Home My WebLink About06-501 PeirceF. Marshall Peirce RR #1, Box 1347 Gouldsboro, PA 18424 David Hess RR #1, Box 1380 Gouldsboro, PA 18424 ADVICE OF COUNSEL January 3, 2006 John Hollister RR #6, Box 6066 Moscow, PA 18444 Robert Oltmann RR #6, Box 6129 Moscow, PA 18444 06 -501 Re: Public Officials; Statement of Financial Interests; Township; Planning Commission; Advisory Body. Dear Mr. Peirce, Mr. Hess, Mr. Hollister and Mr. Oltmann: This responds to your letter dated November 28, 2005, by which you requested an advisory from the State Ethics Commission. Issue: Whether as members of a township planning commission, you are to be considered "public officials" subject to the Public Official and Employee Ethics Act ( "Ethics Act ") 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, such that Section 1103(a) of the Ethics Act would apply to you. Facts: As members of the Covington Township Planning Commission ( "Planning ommission "), you seek an advisory from the State Ethics Commission based upon the following submitted facts. The Planning Commission, a five - member board, is an advisory body to the Covington Township ( "Township ") Board of Supervisors. At the present time, the North Pocono School District ( "School District ") is considering various sites for the future construction of a new high school. If a site is chosen in the Township, a land development application will be presented before the Planning Commission. F. Marshall Peirce ( "Peirce "), the Chair of the Planning Commission, has a transportation contract with the School District. The spouse of D. Hess ( "Hess ") is a teacher employed at the North Pocono Middle School. R. Oltmann ( "Oltmann ") owns land adjacent to one of the possible sites being considered by the School District. The daughter of J. Hollister ( "Hollister ") is a teacher employed by the North Pocono Elementary Center. Based upon the above, you ask whether you would have a conflict of interest under the Ethics Act in participating in discussions and recommendations regarding the land development application or any other official presentations that may come before Peirce /Hess /Hollister /Oltmann, 06 -501 January 3, 2006 Page 2 the Planning Commission concerning the School District and voting to recommend or not recommend approval of the same. 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. The Ethics Act defines the term "public official" 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. The regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria: (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. Peirce /Hess /Hollister /Oltmann, 06 -501 January 3, 2006 Page 3 (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 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 "public official" and the related regulatory criteria to the functions of your position, the necessary conclusion is that in your individual capacities as members of the Planning Commission, you are not to be considered "public officials" as that term is defined in the Ethics Act. This conclusion is based upon your factual representation that the Planning Commission is an advisory [body] to the Covington Township Board of Supervisors "....and is responsible for " recommend[ing] or not recommend[ing], to the Covington Township Board of Supervisors, the Land Development Application." Because you as Planning Commission members serve on an advisory board that has 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, you would not be considered public officials and the Peirce /Hess /Hollister /Oltmann, 06 -501 January 3, 2006 Page 4 Ethics Act would not restrict your activities except as to Sections 1103(b) and (c) which apply to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official/ public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Lastly, the propriety of the proposed conduct has only 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. Conclusion: In your individual capacities as members of the Covington Township Planning Commission ( "Planning Commission "), an advisory body, you are not to be considered "public officials" as that term is defined by the Public Official and Employee Ethics Act ("Ethics Act "). Accordingly, the Ethics Act would not restrict your activities except as to Sections 1103(b) and (c) which apply to everyone. You are not subject to the disclosure requirements of the Ethics Act and you are not required to file Statements of Financial Interests. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. 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