HomeMy WebLinkAbout08-527 SnyderTroy Snyder, Chief
Jefferson Volunteer Fire Company
P.O. Box 3
Codorus, PA 17311
ADVICE OF COUNSEL
March 20, 2008
08 -527
Dear Chief Snyder:
This responds to your letter of February 19, 2008, by which you requested advice
from the State Ethics Commission.
Issue: Whether as Chief of the Jefferson Volunteer Fire Company, you would be
considered a public official /public employee subject to the Public Official and Employee
Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and 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 Chief of the
Jefferson Volunteer Fire Company ( "Fire Company "), you are a public official /public
employee 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. You have submitted facts that may be
fairly summarized as follows.
The Fire Company is physically located within Jefferson Borough ( "the
Borough "). You state that pursuant to a verbal agreement, the Fire Company provides
emergency services to the Borough, Codorus Township, and Manheim Township.
The Officers of the Fire Company ( "the Officers ") are elected by the Fire
Company's membership; they are not elected or appointed by the Borough. You state
that the Officers do not report to the Borough, but rather, are controlled by the Fire
Company's Constitution, By -laws, and Standardized Operating Guidelines. You state
that the Officers receive no salary and cannot expend any public funds. You note that
the Borough does not have any ordinance or job description pertaining to the position(s)
of Fire Chief /Fire Company President.
You state that the Borough provides emergency workers' compensation
insurance for the Fire Company and a small monetary donation to be expended as
determined by the Fire Company's membership. You further state that the Fire
Company has no other ties with the Borough.
Snyder, 08 -527
March 20, 2008
Page 2
You express your view that the Officers do not fit within any of the "Status
Blocks" listed on the Statement of Financial Interests form. You further express your
view that as an Officer, you should not be required to file Statements of Financial
Interests.
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 question that you have posed is whether as Chief of the Fire Company, you
would be considered a public official or public employee subject to the Ethics Act and
Regulations of the State Ethics Commission and specifically, the requirements for filing
Statements of Financial Interests pursuant to the Ethics Act. The Ethics Act defines the
terms "public employee" and "public official" as follows:
§ 1102. Definitions.
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
1 contracting or procurement;
2 administering or monitoring grants or subsidies;
3 planning or zoning;
4 inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis
nature on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
"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 terms
"public employee" and "public official" and set forth additional criteria for applying the
definitions. See, 51 Pa. Code § 11.1.
The following terms are relevant to your inquiry and are defined in the Ethics Act
as follows:
Snyder, 08 -527
March 20, 2008
Page 3
§ 1102. Definitions
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company,
joint stock company, receivership, trust or any legal entity
organized for profit.
"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.
"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. See also, 51 Pa. Code § 11.1 (definition of "political subdivision ").
In applying the Ethics Act's definition of the term "public official," the first portion
of the definition provides that a public official is a "person' (defined to include, inter alia,
an individual, corporation or firm) which 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, status as a public official subject to the Ethics Act is established,
unless the exclusion for members of purely advisory boards is applicable. Eiben,
Opinion 04 -002.
In order to be a "public employee" subject to the Ethics Act, one must be an
"individual" and must stand in an employer- employee relationship with the
Commonwealth or a political subdivision of the Commonwealth. Eiben, supra.
In addressing your specific inquiry, the threshold issue is whether the Fire
Company would be considered a part of the Borough.
For purposes of the Ethics Act, depending upon the circumstances in a given
case, a fire company may be considered to be part of a governmental body /political
subdivision or a private entity. Among the most significant factors in determining the
status of a fire company is the degree to which the fire company is funded and
controlled by the governmental body /political subdivision, or alternatively raises its own
funds and governs itself.
Based upon the submitted facts that: (1) the Borough provides emergency
worker's compensation insurance to the Fire Company and a small monetary donation
to be expended as determined by the Fire Company's membership; (2) there are no
other ties between the Fire Company and the Borough; (3) the Officers are elected by
the membership of the Fire Company and are controlled by the Fire Company's
Constitution, By -laws, and Standardized Operating Guidelines; and (4) the Officers do
not report to the Borough, you are advised that the Fire Company would be considered
to be a private entity and would not be considered part of the Borough. Cf., Stuart,
Advice 96 -595; Petruso, Advice 94 -631.
Snyder, 08 -527
March 20, 2008
Page 4
Therefore, you are advised that in your capacity as Chief of the Fire Company,
you are not a public official or public employee subject to the Ethics Act or Regulations
of the State Ethics Commission, and you are not subject to the requirements for filing
Statements of Financial Interests.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: Based upon the submitted facts that: (1) Jefferson Borough ( "the
Borough ") provides emergency workers' compensation insurance to the Jefferson
Volunteer Fire Company ( "Fire Company ") and a small monetary donation to be
expended as determined by the Fire Company's membership; (2) there are no other ties
between the Fire Company and the Borough; 3 the Officers of the Fire Company ( "the
Officers ") are elected by the membership of the Fire Company and are controlled by the
Fire Company's Constitution, By -laws, and Standardized Operating Guidelines; and (4)
the Officers do not report to the Borough, you are advised as follows. The Fire
Company would be considered to be a private entity and would not be considered part
of the Borough. In your capacity as Chief of the Fire Company, you are not a public
official or public employee subject to the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., or Regulations of the State Ethics
Commission, and you are not subject to the requirements for filing Statements of
Financial Interests.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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