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HomeMy WebLinkAbout06-524 SennettTimothy M. Sennett, Esquire Knox, McLaughlin, Gornall & Sennett 120 West Tenth Street Erie, PA 16501 -1461 Dear Mr. Sennett: ADVICE OF COUNSEL March 1, 2006 06 -524 Re: Public Official; Statement of Financial Interests; Member; Erie - Western Pennsylvania Port Authority. This responds to your letter dated January 19, 2006, by which you requested advice from the State Ethics Commission. Issue: Whether a Board Member of the Erie - Western Pennsylvania Port Authority, 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: As Solicitor of the Erie - Western Pennsylvania Port Authority ( "Authority "), you seek an advisory on behalf of all the Authority Board Members concerning the proper location for filing Statements of Financial Interests ( "SFI's "). You have submitted facts that may be fairly summarized as follows. You state that the Authority is established pursuant to the Third Class City Port Authority Act, 55 P.S. § § 571 — 586. The Authority Board Members are appointed as follows: one member is appointed by the Governor, one member is appointed by the Secretary of Transportation, and the remaining members are appointed by the Mayor. You state that the State Ethics Commission had previously advised that Governor appointees are to forward photocopies of their SFI's to the Office of Administration. It is noted that you have submitted a copy of a letter dated December 21, 1995, from a former Administrative Assistant employed with the State Ethics Commission to the Port Authority of the City of Erie. You opine that the Authority is an independent agency of the Commonwealth and that Board Members are required to file the white copies of their SFI's with the State Ethics Commission, and the yellow copies of their SFI's with the Authority. You ask whether this information is correct with respect to all of the Board Members, including those appointed by the Governor and Secretary of Transportation. Sennett /Erie - Western Pennsylvania Port Authority Board, 06 -524 March 1, 2006 Page 2 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. It is further initially noted that you have not questioned the status of an Authority Board Member as a "public official," but have limited your inquiry as to the proper filing location for such an Authority Board Member. However, in order to provide a comprehensive analysis, this advisory shall first address the status of an Authority Board Member under the Ethics Act. 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. 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. Sennett /Erie - Western Pennsylvania Port Authority Board, 06 -524 March 1, 2006 Page 3 (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 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 first portion of the Ethics Act's definition of "public official" to the above, 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 or a political subdivision of the Commonwealth. Muscalus, Opinion 02 -007. Pursuant to the Third Class City Port Authority Act, nine members are appointed by the Mayor, one member is appointed by the Governor, and one member is appointed by the Secretary of Transportation. The Sennett /Erie - Western Pennsylvania Port Authority Board, 06 -524 March 1, 2006 Page 4 Governor and Secretary of the Department of Transportation serve as ex officio members of the Authority. 55 P.S. § 576. Given the foregoing, it is clear that the Board Members who are appointed by the Mayor, Governor and Secretary of Transportation would satisfy the first portion of the Ethics Act's definition of "public official" as persons appointed by a governmental body. If is also clear that the ex officio Board Members would also satisfy the first portion of the Ethics Act's definition of "public official" as appointed officials in the executive branch of the Commonwealth. In considering the remainder of the definition, the Board Members would not fall within the statutory exception for members of purely advisory boards. Pursuant to the Third Class City Port Authority Act, the Authority has the power to, inter alia, acquire, purchase, hold, lease as lessee, and use any franchise, property, real, personal or mixed, tangible or intangible, or any interest therein, necessary or desirable for carrying out the purposes of the authority, and to sell, lease as lessor, transfer and dispose of any property, or interest therein, at any time, required by it; to fix, alter, charge and collect fare, rates, rental and other charges of its facilities; have the power of eminent domain; and to exercise the public powers of the Commonwealth as an agency thereof. See, Third Class City Port Authority Act, 55 P.S. § 573. Given these statutory powers, the Authority would be not be a purely advisory board, and the Authority Board Members would not fall within the advisory board exception. 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, and 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. Based upon the foregoing judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light of the duties and responsibilities set forth above, the necessary conclusion is that an Authority Board Member would be considered a "public officia " subject to the financial reporting and disclosure requirements of the Ethics Act. Having established that an Authority Board Member would be considered is a "public official," your specific inquiry as to the proper filing location shall now be addressed. Section 1104(a) of the Ethics Act provides as follows: § 1104. Statement of financial interests required to be filed. (a) Public official or public employee. Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall Sennett /Erie - Western Pennsylvania Port Authority Board, 06 -524 March 1, 2006 Page 5 file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. § 1104(a) (Emphasis added). The Ethics Act defines "political subdivision" as follows: § 1102. Definitions. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. It is administratively noted that the Authority was created by ordinance of the City of Erie adopted pursuant to the Third Class City Port Authority Act. Erie - Western Pennsylvania Port Authority v. Rugare, 29 Pa. Commw. 83, 370 A.2d 768, 769, n.1 (1977). Therefore, the Authority is a "political subdivision" as that term is defined in the Ethics Act. For purposes of filing Statements of Financial Interests, an Authority Board Member would be required to file with the Authority, it being the political subdivision with which he is appointed, and not the State Ethics Commission. See, 65 Pa.C.S. § 1104(a). Further, the Statement of Financial Interests must be filed with the Authority no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Id. Although you have submitted a letter from 1995 from a non - attorney, clerical staff member of the State Ethics Commission which appears to address administrative changes as to gubernatorial appointees, that letter is not an official ruling of the Commission. However, this advice has legal effect pursuant to 65 Pa.C.S. § 1107(11). Conclusion: A Member of the Erie - Western Pennsylvania Port Authority ( "Authority ") is to be considered a "public official" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, the Member must file a Statement of Financial Interests each year in which he holds the aforesaid position and the year following termination of such service. The proper filing location is the Authority itself. If the Member has not already done so, a Statement 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 Sennett /Erie - Western Pennsylvania Port Authority Board, 06 -524 March 1, 2006 Page 6 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