Loading...
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