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HomeMy WebLinkAbout10-543 Busack ADVICE OF COUNSEL February 4, 2010 Lawrence Busack 1925 Hill Road Monaca, PA 15061 10-543 Dear Mr. Busack: This responds to your letter dated December 7, 2009, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, pursuant 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, 51 Pa. Code § 11.1 et seq., the requirements for an individual employed as a “Senior Civil Engineer Hydraulic” with the Pennsylvania Department of Environmental Protection to file Statements of Financial Interests would vary depending upon the date the individual leaves such employment. Facts: You have requested an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are currently employed as a Senior Civil Engineer Hydraulic with the Pennsylvania Department of Environmental Protection (“DEP”). You have submitted a copy of your official DEP position description, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Senior Civil Engineer Hydraulic (job code 1113H) has been obtained and is also incorporated herein by reference. You state that in your current position, you are required to annually file both a Statement of Financial Interests (“SFI”) pursuant to the Ethics Act and a Code of Conduct Statement of Financial Interest (“COCSFI”) pursuant to the Governor’s Code of Conduct. You state that you file each of the aforesaid forms annually in April by utilizing the Office of Administration Online Financial Disclosure site (“OA Financial Disclosure Site”). Based upon the above submitted facts, you pose the following specific questions: 1. If you would leave your Commonwealth employment in March 2010 and SFI and COCSFI forms would not be available for filing at the OA Financial Disclosure Site, whether you would be required to file such forms; Busack, 10-543 February 4, 2010 Page 2 2. If you would leave your Commonwealth employment before the end of the 2010 calendar year, whether the SFI and COCSFI forms you would complete the following year would contain information for the full 2010 calendar year or only for the period during which you were employed with the Commonwealth in 2010; and 3. If you would not have access to the OA Financial Disclosure Site following termination of your Commonwealth employment, whether SFI and COCSFI forms would be available in paper form. 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. It is further initially noted that the specific questions you have posed pertain, in part, to the requirements of the Governor’s Code of Conduct. However, this advisory is necessarily limited to addressing your inquiry from the perspective of the Ethics Act. The State Ethics Commission does not have jurisdiction to address your questions under the Governor’s Code of Conduct. As a Senior Civil Engineer Hydraulic for DEP, you are a public employee subject to the Ethics Act and the Regulations of the State Ethics Commission, including the requirements for filing Statements of Financial Interests. Cf., Amica, Advice 00-516. Section 1104(a) of the Ethics Act provides as follows: § 1104. Statement of financial interests required to be filed (a)Public official or public employee.-- Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full-time or part-time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. § 1104(a). Section 1105 of the Ethics Act provides, in pertinent part, as follows: Busack, 10-543 February 4, 2010 Page 3 § 1105. Statement of financial interests (a) Form.-- The statement of financial interests filed pursuant to this chapter shall be on a form prescribed by the commission. All information requested on the statement shall be provided to the best of the knowledge, information and belief of the person required to file and shall be signed under oath or equivalent affirmation. (b) Required information.-- The statement shall include the following information for the prior calendar year with regard to the person required to file the statement: . . . . 65 Pa.C.S. § 1105. Section 19.1 of the Regulations of the State Ethics Commission, pertaining to the Statement of Financial Interests form promulgated by the Commission, provides in pertinent part as follows: § 19.1. Forms; filing. (a) Public officials, public employes and candidates shall file Form SEC-1, as published and revised by the Commission. (b) The Statement of Financial Interests form is available at the Commission, the State Board of Elections, the County Board of Elections and other locations as conditions warrant. The postal address of the Commission is: State Ethics Commission, Post Office Box 11470, Harrisburg, Pennsylvania 17108-1470. The office of the Commission is located in Room 309, Finance Building, Capitol Complex, Harrisburg, Pennsylvania, (717) 783-1610, (800) 932-0936. . . . . 51 Pa. Code § 19.1. Section 19.2 of the Regulations of the State Ethics Commission provides as follows: § 19.2 Period covered. The Statement of Financial Interests requires information for the full calendar year immediately preceding the year in which the Statement of Financial Interests is filed. 51 Pa. Code § 19.2. In applying the above provisions of the Ethics Act and Regulations of the State Ethics Commission to your three specific questions, you are advised as follows. Given your status as a public employee subject to the Ethics Act, you would be required to file an SFI by May 1 of each year that you hold your public position and of the year after you leave that position. For each SFI that you would file, you would be required to report information for the full calendar year immediately preceding the year in which the SFI is filed. If you would be unable to file your SFI(s) at the OA Financial Disclosure Site, SFI forms could be obtained by mail from the State Ethics Commission. Busack, 10-543 February 4, 2010 Page 4 Your questions have only been addressed under the Ethics Act and Regulations of the State Ethics Commission. Conclusion: As a Senior Civil Engineer Hydraulic with the Pennsylvania Department of Environmental Protection, you are a public employee subject to provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., including the requirements for filing Statements of Financial Interests (“SFIs”) pursuant to the Ethics Act. Given your status as a public employee subject to the Ethics Act , you would be required to file an SFI by May 1 of each year that you hold your public position and of the year after you leave that position. For each SFI that you would file, you would be required to report information for the full calendar year immediately preceding the year in which the SFI is filed. If you would be unable to file your SFI(s) at the OA Financial Disclosure Site, SFI forms could be obtained by mail from the State Ethics Commission. 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