OFFICIAL OPINION No. 14

OFFICIAL OPINION No. 14 Solicitation of Charitable Funds Act, JO P.S. § 160-1 et seq.-Public Libraries- Department of Education. 1. Local libraries must be considered charitable educational organizations under the Solicitation of Charitable Funds Act. 2. T~e Legislature has not granted local libraries an exemption from registering with the Commission on Charitable Solicitations. 3. Local libraries which are controlled by municipalities are also under the control of the Solicitation of Charitable Funds Act. 4. Local libraries which solicit funds from the public must adhere to the re- quirements of the Solicitation of Charitable Funds Act. Honorable John C. Pittenger Secretary Department of Education Harrisburg, Pennsylvania Dear Secretary Pittenger: Harrisburg, Pa. March 20, 1974 Receipt is acknowledged of your request for our opinion regard- ing the applicability of the Solicitation of Charitable Funds Act, 10 P.S. § 160-1 et seq., to local libraries which receive state and municipal funds. There is also a question concerning the applicability of the Solicitation of Charitable Funds Act regulating a local library which is controlled by a municipality. It is our opinion and you are hereby advised that public libraries are subject to the Solicitation of Charitable Funds Act. This opinion is applicable to local libraries which were organized both before and after the enact- ment of The Library Code, 24 P.S. §4101 et seq. It is also our opi- nion that the status of a local library which is operated in part by a municipality has no bearing on the legislative intent of the Solicitation of Charitable Funds Act and is thereby governed by it. "Local libraries" as defined by The Library Code include: "Any free, public, nonsectarian library, whether establish- ed and maintained by a municipality or by a private association, corporation or group, which serves the infor- mational, educational and recreational needs of all the residents of the area for which its governing body is respon- sible, by providing free access (i!1cluding free lending and reference services) to an orgamzed and currently useful collection of printed items and other materials and to the services of a staff trained to recognize and provide for these needs." 50 OPINIONS OF THE ATTORNEY GENERAL To help finance the operation and maintenance o~ library services the local libraries receive funds from local taxes, gifts, endowments and other local sources including fund raising drives for which solicitors may be hired. The local libraries also receive funds from the State Libraries Advisory Council in proportion to the local funds they receive. The definition of a "charitable organization" as defined by the Solicitation of Charitable Funds Act is " .... a person who holds itself to be a benevolent, educational, philanthropic, humane, patriotic, religious or eleomosynary organization .... ' (10 P.S. §160-2). The term "person" is defined as: " ... any individual, organization, trust, foundation, group, association, partnership, corporation, society, or any combination of them." (10 P.S. §160-2). On the basis of the foregoing definitions it is apparent that local libraries are educational organizations subject to the Solicitation of Charitable Funds Act, unless exempted by some other provision of the Act or exempt by virtue of their quasi-public status under present law regulating their activities. It is contended by the local libraries that they are essentially public agencies and not educational organizations under the Solicitation of Charitable Funds Act. They base their contention on the amount of control that the individual municipal and state authorities have over their activities. Section 411 of the Library Code, 24 P.S. §4411 speaks to the control which municipal governments have over local libraries after the establishment of the "Library Code": "The affairs of all local libraries established after the effec- tive date of this act and under the provisions of the preceding sections of this article shall be under the ex- clusive control of a board of library directors to be com- posed of not less than five nor more than seven members. The municipal officers shall appoint the members and fill any vacancies occurring from any cause: Provided, That where two or more municifalities contribute to the support and maintenance of a loca library, they shall each appoint a number of members to serve on the board oflibrary direc- tors as is mutually agreed upon by the said municipalities, the total number not to exceed nine members: Provided further, That when a municipality maintains or aids in the maintenance of a local library established after the effec- tivE; date of this act by deed, gift or testamentary provision o_r m any manner other than under the provisions of sec- t10ns 401 or 496 of this act, it shall be sufficient if the municipal officers appoint the majority of the members of the board of library directors. The first appointees shall be appointed as nearly as may be one-third for one year, one- th1.rd for two y~ars and one-third for three years. All ap- pointments to fill the places of those whose terms expire shall be for a term of three years. Vacancies shall be filled OPINIONS OF THE ATTORNEY GENERAL for the unexpired terms. All members shall serve until their successors have been appointed. No member of the board shall receive any salary for his service as such." (emphasis added). 51 This section also gives a certain amount of authority to munici.r;>alities over the local libraries established before enactment of the ' Library Code." It states that: "In the case of a local library established by deed, gift or testamentary provision, or by any association, corporation or group, prior to the effective date of this act, this section shall not be construed to require the municipal offices of each municipality aiding in the maintenance of a local library to appoint more than two of the library directors of such local library." Sections 413 and 414 of the Library Code. 24 P.S. §§4413, 4414 put further emphasis on the control which municipal authorities have over local libraries. Section 413 gives authority to the Library Director to control all funds and to make an annual report to the proper municipal authorities while section 414 requires a copy of the report which contains an itemized statement of all receipts from whatever source and expenditures to the State Library in order for the Library Advisory Council to make a proper allocation offunds. Article Two of the Library Code, 24 P.S. §4201 et seq. gives the State Libraries the authority to oversee the complete operation of libraries throughout the state which includes the promulgation of rules and regulations for the purpose of carrying out the purpose and duties relating to libraries as imposed by the Library Code. However, none of these controls by municipal and state authorities can exclude local libraries from being charitable educational organizations under the Solicitation of Charitable Funds Act. The Solicitation of Charitable Funds Act has specified those types of organizations which should be exempted. Section 4(a) (1) of the Solicitation of Charitable Funds Act list the educational organizations which are exempt from registration: (1) "Educational institutions, the curriculums of which in whole or in gart are registered or approved by the State Council of Education of the Commonwealth of Penn- sylvania, either directly or by acceptance of accreditation by an accrediting body recognized by the State Council of Education: Provided, That such educational institutions simultaneously file with the Commission on Charitable Organizati~:ms duplicates of such ann1:1al fiscal r~ports as are filed with the Department of Public Instruct10n of the Commonwealth of Pennsylvania." 10 P.S. §160-4(a) (1). Although the individual public libraries are required to file an- 52 OPINIONS OF THE ATTORNEY GENE RAL nual reports with the State Libraries, they cann.ot be .con~id~red within the exception because they are not educat10nal rnstitut~ons that have curricula which are approved by the State Council of Education. The Solicitation of Charitable Funds Act also specifically ex- empts at Secti~n 4(a) (4), hospita~s whicry ar:e non-profit and charitable, and, rn rr_ian:y cases? public agenc1~s •. 1f a copy of t~e an- nual fiscal report is filed with the Cornm1ss10n on Charitable Organizations. 1 It is therefore apparent that the Legislature has exempted organizations where sufficient safeguards exist under other laws to prevent abuses of charitable solicitations. However, in this instance, although the State Advisory Council on Library Development has access to the local libraries' financial reports, the Council does not review or regulate the fund-raising activities of libraries. In addressing the issue of whether a local library that is operated in part by a municipality is controlled by the statute, we must es- tablish what authority that the Legislature has over municipal cor- porations. It has been a well stated law in Pennsylvania that a municipal cqrporation possesses only that which the Legislature grants it. In White Oak Borough Authority Appeal, 372 Pa. 424, 427 ( 1953) the Court stated: "Neither Authorities nor Municipalities are sovereign; they have no original or inherent or fundamental power of sovereignty or of legislation; they have only the power and authority granted them by enabling statutory legislation." What must logically follow from the Court's statement is that municipal corporations are controlled entirely by the Legislature and are not immune to legislative statutes unless specifically stated. In the matter at hand there is no prohibition against the Legislature regulating the solicitation of municipally controlled libraries. In- deed, as mentioned above, the Solicitation of Charitable Funds Act has specifically excluded those activities which they did not feel needed regulation. Barring any such exemption a municipal cor- poration does not possess any unique status which would exclude its being covered. This principle is stated most appropriately in Com- monwealth v. Moir. 199 Pa. 534, 541 (1901): "Municipal corporations are agents of the State, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed, and the extent of their powers determined by the legislature, and subject to change, repeal, or total abolition 1 qther or&'ani zations ~ i t h publ.i c trustees such as museums file annually with the Comm1ss1011 on Chan table Soli c1tat10n and otherwise comply with the statute and l'egulat10ns. OPINIONS OF THE ATTORNEY GENERAL at its will. They have no vested rights in ther office, their charters, their corporate powers, or even their corporate existence. This is the universal rule of constitutional law, and in no state has it been more clearly expressed and more uniformly applied than in Pennsylvania .... The fact that the action of the State towards its municipal agents may be unwise, unjust, oppressive, or violative of the natural or political rights of their citizens, is not one which can be made the basis of action by the judiciary. " 53 Accordingly, the Solicitation of Charitable Funds Act does regulate a local library which is under municipal control. CONCLUSION Local libraries must be considered charitable educational organizations under the Solicitation of Charitable Funds Act. The Legislature has not granted local libraries an exemption from registering with the Commission on Charitable Solicitations. Local libraries which are controlled by municipalities are also under the control of the Solicitation of Charitable Funds Act. It is therefore concludP.d and you are hereby advised that any local library which solicits funds from the public must adhere to the requirements of the Solicitation of Charitable Funds Act. Very truly yours, Robert J. Dixon Deputy Attorney General Israel Packel Attorney General OFFICIAL OPINION No. 15. Labor Relations-Collective Bargaining-Public Employee Relations Act 1. The granting of a retroactive pay increase in a collective bargaining a!\'reemen_t, where no prior agreement has been reached on the am<;>untof c~mp_ensat1on due, 1s not a violation of Article III, §26 of the Pennsylvania Const1tut10n. Hon. Paul J. Smith, Secretary Department of Labor and Industry Harrisburg, Pennsylvania Dear Secretary Smith: Harrisburg, Pa. March 25, 1974 you have requested our opinion with respect to the following question: 54 OPINIONS OF THE ATTORNEY GENERAL Is the granting of a retro~c~ive pay a~justment in a collect~ve bargaining agreei:nent proh1~1ted as bemg extra compensat10.n within the meanmg of Article III, §26 of the Pennsylvania Constitution which provides in relevant part: No bill shall be passed giving any extra compensation to any public officer, servant, employe, agent or contractor after services shall have been rendered or contract made .... In Official Opinion No. 11of1974 dated February 15, 1974, 4 Pa. B. 436, a similar question was raised as to whether overtime payments made to State employes and approved retroactively un- der 4 Pa. Code §27.54(b) are a violation of Article III, §26. In that Opinion, we said: Because Section 215 of the Administrative Code prospec- tively authorizes overtime payments, compensation provided pursuant to Section 215 and to regulations of the Executive Board is not "extra compensation." Such payrnents are normal compensation for overtime service. Therefore, Section 27.54(b) does not conflict with Article III, §26 of the Pennsylvania Constitution. In short, because the Executive Board has given proper advance authorization for certain types of overtime com- pensation in Section 27.54, that section does not provide for retroactive approval of overtime compensation in violation of either Section 215 of the Administrative Code or of Article III, § 26 of the Pennsylvania Constitution. In our judgment, the same rationale applies here. The Public Employe Relations Act of July 23, 1970, P.L. 563, 43 P.S. §1101.101 et seq. authorizes the negotiation of collective bargaining agreements by public employers and their employes with respect to wages, hours and other terms and conditions of employment "and the execution of a written contract incorporating any agree- ment reached .... " 43 P.S. §1101. 701. It is often the case that agree- ment cannot be reached until after the date of expiration of the previous contract or, in the case of the first collective bargaining agreement, after the date that the Legislature has duly authorized the negotiation of a collective bargaining agreement. Since it is to the benefit of all concerned that our public employes continue to serve pending final agreement on contract terms, -they often do so with the clear understanding that the amount of compensation due shall be determined at a later date . . Given the_prior authorization by the Legislature of this procedure m the Public Employe Relations Act and given the fact that the amount of coIT?pensation to. be paid each employe during such period has. not ~een f1xe.d, ~o .that 1 t c~n !'iardly be said that "extra" compen- sat10n will be paid, 1t 1s our opm10n, and you are so advised, that the OPINIONS OF THE ATTORNEY GENERAL 55 granting of a retroactive pay increase in a collective bargaining agree!lle~t is not a violation of Article III, § 26 of the Pennsyivania Const1 tut10n. 1 Sincerely, Mark P. Widoff Deputy Attorney General Israel Packel Attorney General