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HomeMy WebLinkAbout88-531 AmbroseSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 March 14, 1988 ADVICE OF COUNSEL Mr. Paul B. Ambrose 1872 Philadelphia Avenue Chambersburg, PA 17201 Re: Statement of Financial Interests, Political Party Committeeperson, Township Planning Commission, Township Zoning Hearing /Appeal Board Dear Mr. Ambrose: 88 -531 This responds to your letter of February 6, 1988, in which you requested advice from the State Ethics Commission._ Issue: Whether either a political party committeeperson, a township planning commissioner, or a township zoning hearing /appeal board member is a public official under the Ethics Act so as to be required to file the Statement of Financial Interests. Facts: In your advice request, you pose three questions all relating to the requirements for filing of Statements of Financial Intersts. First, you ask whether an individual who would be running in the primary for a political party committeeperson is required to file. Secondly, you ask whether an appointed township planning commissioner would be required to file. Thirdly, you ask whether an appointed township zoning hearing /appeal board member would be required to file the said Statement of Financial Interests. Discussion: Section 404 of the Ethics Act sets forth the filing requirements as to Statements of Financial Interests. It is provided in subsections (a) and (b) of Section 404 of the Ethics Act: Section 4. Statement of financial interests required to be filed. (a) Each public employee employed by the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency or bureau in which he is employed no later than May 1 of each Mr. Paul B. Ambrose March 14, 1988 Page 2 year that he holds such a position and of the year after he leaves such a position. Any other public employee shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. 65 P.S. 404(a). Section 4. Statement of financial interests required to be filed. (b) Each candidate for public office shall file a statement of financial interests for the preceding calendar year with the commission prior to filing a petition to appear on the ballot for election as a public official. A petition to appear on the ballot shall not be accepted by an election official unless the petition includes an affidavit that the candidate has filed the required statement of financial interests with the commission. 65 P.S. 404(b). As to whether a candidate for office is required to file a Statement of Financial Interests, the general rule under subsection (b) quoted above is that each candidate for public office shall file the Statement of Financial Interests both with the State Ethics Commission and locally prior to filing the nominating petition. However, as to political party committeepersons, as well as political convention delegates, it has been determined that a political party committeeperson is not a "public official" as that term is defined under the Ethics Act and hence is not required to file the Statement of Financial Interests. See Brennan Advice, 83 -593. As to the matter of whether a township planning commissioner is required to file a Statement of Financial Interests, the regulations of the State Ethics Commisison define public official as follows: Section 1.1. Definitions. Public officials - -- An elected or appointed official in the executive, legislative or judicial branch of the government of the Commonwealth or its political subdivisions. The terms does not include a member of an advisory board who has no authority to spend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or a political subdivision thereof. Mr. Paul B. Ambrose March 14, 1988 Page 3 (1) 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 monies, 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 minimus effect on the interest of a person. (8) The body will be deemed to have the authority to otherwise exercise the power of the State or of 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. (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. Mr. Paul B. Ambrose March 14, 1988 Page 4 (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 generaly includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (8) Heads of executive, legislative and independent agencies, boards and commissions. (C) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (0) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (E) School superintendents and assistant superintendents. (F) Persons appointed to positions designated as offices by code, charter or the like of the Commonwealth or its political subdivisions. (G) Members of municipal, industrial development, housing, parking and similar authorities. (H) Members of zoning hearing boards and similar quasijudicial bodies. (I) Members of other public bodies meeting the criteria set forth in subparagraph (i)(A). 51 Pa. Code §1.1 as amended 1986, 16 Pa. Bulletin 4653 Mr. Paul B. Ambrose March 14, 1988 Page 5 Under the above quoted regulation, if an official is serving on the typical planning commission which is only advisory in nature and which has no authority to expend public funds aside from reimbursement of personal expenses and which does not exercise the power of the state or political subdivision, than that individual who serves on that type of planning commission would not be a "public official" as that term is defined under the Ethics Act and the regulations therein and hence would not be required to file the Statement of Financial Interests. Regarding your third inquiry as to whether a township zoning hearing /appeal board member is required to f i l e the Statement of Financial Interests, it has been determined that such individuals are public officials who are required to file the Statement of Financial Interests. See Brennan Advice, supra. Conclusion: Although candidates for office are required to file a Statement of Financial Interests with the State Ethics Commission and locally prior to the filing their nominating petition, candidates for the position of political party committeepersons are not required to file the Statement of Financial Interests. Secondly, a member of a township planning commission which is purely advisory in nature, which does not expend public funds other than for reimbursement of personal expenses and which does not exercise the power of the Commonwealth or a political subdivision, is not "public official" under the Ethics Act and hence is not required to file the Statement of Financial Interests. Lastly, zoning hearing /appeal board members are "public officials" as that term is defined under the Ethics Act and are subject to the filing of Statements of Financial Interests. Pursuant to Section 7(9)(ii), this Advice is a complete defense in ary enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sincerely, Vincent J. Dopko General Counsel