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HomeMy WebLinkAbout11-531 Harvey ADVICE OF COUNSEL June 10, 2011 Ronald G. Harvey, Chief Monroeville Volunteer Fire Company No. 5 P.O. Box 156, 100 Seco Road Monroeville, PA 15146 11-531 Dear Chief Harvey: This responds to your letter dated April 13, 2011 (postmarked April 14, 2011, and received April 20, 2011), by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, as Chief of Monroeville Volunteer Fire Company No. 5, 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 the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and particularly, the requirements for filing Statements of Financial Interests. Facts: You seek a determination as to whether, in your capacity as Chief of Monroeville Volunteer Fire Company No. 5 (“the 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 located in Monroeville, Pennsylvania (“the Municipality”). The Municipality does not appoint the Chief or any other Officer involved with the Fire Company. The Fire Company and its Officers are governed by the Fire Company’s Constitution and By-laws. The Chief and other Officers of the Fire Company do not receive any type of compensation for their service with the Fire Company. You state that all benefits supplied by the Municipality, such as fuel, tires, and general maintenance, are paid for by the Municipality via its purchase order system. You further state that each year, the Municipality issues a check in the amount of $19,500.00 to the Fire Company after the Fire Company submits bills to justify receipt of such funds. In a telephone conversation with Commission staff on April 12, 2011, you stated that the Fire Company receives the majority of its funds from its own fundraisers. 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 Harvey, 11-531 June 10, 2011 Page 2 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 Ethics Act defines the term “public official” 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. The regulations of the State Ethics Commission similarly define the term “public official” and set forth the following additional criteria: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of moneys, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body’s decisions or restrain the governing authority from acting contrary to the body’s decisions. Harvey, 11-531 June 10, 2011 Page 3 (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. (VII) The body has the power of eminent domain or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F) Members of zoning hearing boards and similar quasi-judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). 51 Pa. Code § 11.1. 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 Municipality. Harvey, 11-531 June 10, 2011 Page 4 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 Municipality does not appoint the Chief or any other Officer involved with the Fire Company; (2) the Fire Company and its Officers are governed by the Fire Company’s Constitution and By-laws; (3) all benefits supplied by the Municipality, such as fuel, tires, and general maintenance, are paid for by the Municipality via its purchase order system; (4) each year, the Municipality issues a check in the amount of $19,500.00 to the Fire Company after the Fire Company submits bills to justify receipt of such funds; and (5) the Fire Company receives the majority of its funds from its own fundraisers, you are advised that the Fire Company would be considered to be a private entity and would not be considered part of the Municipality. Cf., Snyder, Advice 08-527; Stuart, Advice 96-595; Petruso, Advice 94- 631. 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 the Regulations of the State Ethics Commission, and you are not required to file Statements of Financial Interests pursuant to the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) Monroeville, Pennsylvania (“the Municipality”) does not appoint the Chief or any other Officer involved with Monroeville Volunteer Fire Company No. 5 (“the Fire Company”); (2) the Fire Company and its Officers are governed by the Fire Company’s Constitution and By-laws; (3) all benefits supplied by the Municipality, such as fuel, tires, and general maintenance, are paid for by the Municipality via its purchase order system; (4) each year, the Municipality issues a check in the amount of $19,500.00 to the Fire Company after the Fire Company submits bills to justify receipt of such funds; and (5) the Fire Company receives the majority of its funds from its own fundraisers, you are advised as follows. The Fire Company would be considered to be a private entity and would not be considered part of the Municipality. 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 the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and you are not required to file Statements of Financial Interests pursuant to the Ethics Act. 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. Harvey, 11-531 June 10, 2011 Page 5 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