HomeMy WebLinkAbout13-519 Newcomer
ADVICE OF COUNSEL
April 10, 2013
Melvin E. Newcomer, Esquire
Kluxen & Newcomer
339 North Duke Street
P.O. Box 539
Lancaster, PA 17608-0539
13-519
Dear Mr. Newcomer:
This responds to your letters of February 14, 2013, and February 28, 2013, by
which you requested an 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 prohibit a chief clerk of a county board of elections from
being designated by the county commissioners to receive and retain, as required by
law, all Statements of Financial Interests filed with the county by any candidates,
nominees, public officials, public employees, or solicitors.
Facts:
As the Assistant County Solicitor for Lancaster County (“County”),
Pennsylvania, you have been authorized by the Chief Clerk of the County Board of
Elections, Randall O. Wenger (“Chief Clerk Wenger”), to request an advisory from the
Pennsylvania State Ethics Commission on his behalf. You have submitted facts that
may be fairly summarized as follows.
The County Commissioners propose to adopt a resolution that would designate
the Chief Clerk of the County Board of Elections to receive and retain, as required by
law, all Statements of Financial Interests (“SFIs”) filed with the County by any
candidates, nominees, public officials, public employees, or solicitors.
You ask whether the Ethics Act would prohibit Chief Clerk Wenger from being
designated by the County Commissioners to receive and retain, as required by law, all
SFIs filed with the County by any candidates, nominees, public officials, public
employees, or solicitors.
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.
Newcomer, 13-519
April 10, 2013
Page 2
The requirements for filing SFIs pursuant to the Ethics Act apply to public
officials, public employees, candidates, nominees, and full-time and part-time solicitors,
as those terms are defined in the Ethics Act. See, 65 Pa.C.S. §§ 1102, 1104-1105.
Section 1104(a)-(c) of the Ethics Act sets forth the locations where public officials,
public employees, candidates, nominees, and full-time and part-time solicitors are
required to file their SFIs. See, 65 Pa.C.S. § 1104(a)-(c).
The State Ethics Commission has specifically recognized the ability of a board of
county commissioners to designate particular county office(s) to serve as the filing
location(s) for SFIs. See, Mansour, Opinion 97-006.
Based upon the above, you are advised that the Ethics Act would not prohibit
Chief Clerk Wenger from being designated by the County Commissioners to receive
and retain, as required by law, all SFIs filed with the County by any candidates,
nominees, public officials, public employees, or solicitors.
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 County Code.
Conclusion:
The Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq., would not prohibit the Chief Clerk of the Board of Elections of
Lancaster County (“County”), Pennsylvania, Randall O. Wenger, from being designated
by the County Commissioners to receive and retain, as required by law, all Statements
of Financial Interests filed with the County by any candidates, nominees, public officials,
public employees, or solicitors. 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