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HomeMy WebLinkAbout07-526 DAYEHarriet K. Daye 211 McClelland Avenue Polk, PA 16342 Dear Ms. Daye: ADVICE OF COUNSEL April 20, 2007 07 -526 This responds to your Financial Interest Disclosure Appeal form dated March 16, 2007, received by the State Ethics Commission on March 20, 2007, which will be treated as a request for advice from the State Ethics Commission. Issue: Whether as a Member and the Vice President of the Polk Center Board of Trustees, you would be considered a "public official" 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, and particularly, the requirements for filing Statements of Financial Interests. Facts: You seek a determination as to whether, in your capacity as the Vice President of the Polk Center Board of Trustees, you are a "public official" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. You specifically question whether you are required to file Statements of Financial Interests. On your Financial Interest Disclosure Appeal form, you state your belief that the Board of Trustees is a purely advisory board. A copy of the Bylaws of the Polk Center Board of Trustees ( "Bylaws ") has been obtained from the Pennsylvania Department of Public Welfare and is incorporated herein by reference. It is noted that the Bylaws provide in pertinent part: Purpose: Section 1. As governed by the Public Welfare Code, Section 317, the powers and duties of the Board of Trustees of Polk Center shall include: A. Advising, assisting and making recommendations to the Facility Director with respect to the management and operations of the Facility and with respect to the plans and programs for its improvement. Dave, 07 -526 April 20, 2007 Page 2 B. Keeping under review all matters pertaining to the welfare and well -being of the individuals living at the Center and making recommendations to the Facility Director with respect thereto. C. Advising and making recommendations regarding the selection and appointment of a Facility Director, in case of a vacancy, to the Deputy Secretary of Mental Retardation. D. Developing proper relationships and understanding with the community toward actualizing a unified Facility /community mental retardation service system in order to better serve, in a comprehensive manner, the needs of the mentally retarded. 11. Members: Section 401, Administrative Code, requires that: A. Appointments to the Board are made by the Governor. Bylaws of the Polk Center Board of Trustees, at 1. Administrative notice is taken of Section 317(a) of the Public Welfare Code, 62 P.S. § 317(a), which provides as follows: § 317. Boards of trustees of other state institutions; powers and duties (a) The powers and duties of the boards of trustees of each State institution within the department caring for the mentally ill, feeble- minded, mentally retarded, mentally deficient, geriatric center patients and juvenile delinquents, shall be only as defined in this section: (1) To advise, assist and make recommendations to the superintendent with respect to the management and operation of the institution and with respect to any plans or programs for its improvement. (2) To keep under review all matters pertaining to the welfare and well -being of patients and juvenile delinquents and to make recommendations to the superintendent with respect thereto. (3) To advise and make recommendations to the Commissioner of Mental Health or the secretary, as the case may be, with regard to the selection and appointment of a superintendent in case of a vacancy. Dave, 07 -526 April 20, 2007 Page 3 (4) To advise and make recommendations to the superintendent with regard to his selection of employes of the institution. (5) To develop and further means and methods of establishing proper relations and understanding between the institution (and its program) and the community in which it is located; and, to provide liaison between the institution and the community in order better to serve the interests and needs of both. (6) To make recommendations to the Advisory Committee for Mental Health and Mental Retardation, Advisory Committee for the Aging, and the Advisory Committee for Children and Youth, as the case may be, on matters of policy and program emerging from their intimate knowledge and experience of mental health, geriatric and juvenile delinquency programs in operation. 62 P.S. § 317(a). 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 related term "governmental body" is defined as follows: "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. 65 Pa.C.S. § 1102. Dave, 07 -526 April 20, 2007 Page 4 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. (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. Dave, 07 -526 April 20, 2007 Page 5 (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. 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 upon the power and authority of the position rather than claims as to the specific duties actually performed. 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, Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984). 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: (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. The fact that you were appointed to the Polk Center Board of Trustees by the Governor satisfies the first portion of the definition. See, Cohen, Opinion 03 -006. As for the remainder of the definition, the necessary conclusion is that you would not fall within the statutory exception for 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. In considering the powers and duties of the Board of Trustees, it is clear that although the Board of Trustees performs some advisory functions, for purposes of applying the Ethics Act, the Board of Trustees goes beyond advisory functions. Pursuant to Section 317(a)(1) of the Public Welfare Code and the Bylaws set forth above, the Board of Trustees has the power to assist the Polk Center Facility Director with respect to: (1) the management and operations of the facility; and (2) plans and programs for the facility's improvement. Given the foregoing powers, it is clear that the Board of Trustees is not a purely advisory board. Therefore, based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission's Regulations, and the opinions of the State Ethics Commission, the necessary conclusion is that you are a "public official" subject to the Ethics Act and the regulations of this Commission, and that you are required to file Statements of Financial Interests pursuant to the Ethics Act. Conclusion: As a Member and the Vice President of the Polk Center Board of Trustees, you are a "public official" subject to the Public Official and Employee Ethics Act ( "Ethics Act ") and the Regulations of the State Ethics Commission. Accordingly, Dave, 07 -526 April 20, 2007 Page 6 you must file a Statement of Financial Interests each year in which you hold the aforesaid position and the year following your termination of such service. If you have 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 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, Robin M. Hittie Chief Counsel