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HomeMy WebLinkAbout13-503 ADVICE OF COUNSEL January 17, 2013 13-503 This responds to your letter of November 19, 2012, and your two letters of November 26, 2012, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose any duty upon a [type of political subdivision] A to send Statement of Financial Interests forms to the [type of political subdivision] Bs. Facts: You have been authorized to request a confidential advisory from the Pennsylvania State Ethics Commission on behalf of the A for [name of political subdivision] (the “Political Subdivision”), located in [name of county], Pennsylvania. You have submitted facts that may be fairly summarized as follows. You state that a B for the Political Subdivision has not filed a Statement of Financial Interests (“SFI”) with the Political Subdivision as required by the Ethics Act. You state that the aforesaid B claims that she is not required to file the SFI because the Political Subdivision A never sent an SFI form to her. Based upon the above submitted facts, you ask whether the Ethics Act would require the Political Subdivision A to send SFI forms to the Political Subdivision Bs. 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 A for the Political Subdivision is a public official/public employee subject to the provisions of the Ethics Act. Section 1104(a) of the Ethics Act provides: § 1104. Statement of financial interests required to be filed Confidential Advice, 13-503 January 17, 2013 Page 2 (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(a) of the Ethics Act provides as follows: § 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. 65 Pa.C.S. § 1105(a). The duty to file the SFI form lies with the filer. The Commission mails blank SFI forms each year to political subdivisions throughout the Commonwealth so that filers will be able to pick up the form for purposes of completion. You are advised that the Ethics Act does not impose any duty upon the Political Subdivision A to send to the Political Subdivision Bs the SFI form required to be filed pursuant to Sections 1104(a) and 1105(a) of the Ethics Act. It is parenthetically noted that the Commission also makes the SFI form available on the Commission’s web site at www.ethics.state.pa.us. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the C. Conclusion: The A for [name of political subdivision] (the “Political Subdivision”), located in [name of county], Pennsylvania, is a public official/public employee subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The Ethics Act does not impose any duty upon the Political Subdivision A to send to the Political Subdivision Bs the Statement of Financial Interests form required Confidential Advice, 13-503 January 17, 2013 Page 3 to be filed pursuant to Sections 1104(a) and 1105(a) of 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. 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