Loading...
HomeMy WebLinkAbout08-540 SchmidtWerner G. Schmidt, Jr. 779 Dogwood Terrace Boiling Springs, PA 17007 -9633 Dear Mr. Schmidt: ADVICE OF COUNSEL April 18, 2008 08 -540 This responds to your letter dated March 10, 2008, by which you requested advice from the Pennsylvania State Ethics Commission. Issue: Whether, as an elected Auditor for Monroe Township ( "Township "), located in Cumberland County, Pennsylvania, 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 Pennsylvania State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests. Facts: You seek an advisory from the Pennsylvania State Ethics Commission based upon the following submitted facts. You have served as an elected Auditor for the Township for the past six years. In November 2007, you were elected to a second six -year term. You state that each year since you were first elected, including this year, the Township Supervisors have chosen to not have the elected Township Auditors perform the annual Township audit. Instead, the Township Supervisors have appointed an accounting firm to perform the Township audit. Each year the Township has informed you that you are required to file a Statement of Financial Interests for the prior calendar year. You express your belief that you should not be required to file a Statement of Financial Interests because in your view, you have not performed any of the duties of an elected Auditor due to the appointment each year of an accounting firm to perform the annual Township audit. You request an advisory as to whether, as an elected Township Auditor, you would be required to file Statements of Financial Interests pursuant to the Ethics Act when the Township Supervisors appoint an accounting firm to do the annual Township audit. 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 Schmidt, 08 -540 April 18, 2008 Page 2 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 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 (Emphasis added). See also, 51 Pa. Code § 11.1 (definition of "public official "). In applying the above 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 elected by the public to the office of Township Auditor satisfies the first portion of the definition and establishes your status as a "public official" subject to the Ethics Act. See, Heichel, Order 1271; Wilson, Order 1226; Norman, Order 1214. As a "public official," you are subject to the Ethics Act and the regulations of the State Ethics Commission, and you are specifically required to file Statements of Financial Interests pursuant to Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a). Section 1104(a) of the Ethics Act expressly provides that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. The submitted fact that the Township Auditors do not perform the annual Township audit does not excuse you from the filing requirement. It is parenthetically noted that Section 65917(c) of the Second Class Township Code, 53 P.S. § 65917(c), provides that when a township board of supervisors appoints an accountant or firm to complete the township audit, the board of auditors shall perform the other duties of office, such as setting compensation for working supervisors. Conclusion: As an elected Auditor for Monroe Township, located in Cumberland County, Pennsylvania, 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, 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. 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. Schmidt, 08 -540 April 18, 2008 Page 3 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