HomeMy WebLinkAbout84-502 MalkamesWilliam G. Malkames, Solicitor
509 Linden Street
Allentown, PA 18101 -1491
Madmg Address:
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
January 9, 1984
ADVICE OF COUNSEL
84 -502
RE: City of Allentown Authority, Allentown Public Library Board
Dear Mr. Malkames:
State Ethics Commission • 308 Fina,ce Building ! Harrisburg, Pennsylvania
•
This responds to your letter of December 23, 1983, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether certain members of the School District of the City of
Allentown Authority and the Allentown Public Library Board are required to
file Financial Interests Statements.
Facts: You indicate that you serve as solicitor for the School District of
the City of Allentown Authority and the Allentown Public Library Board. You
indicate that the members of each of these entities have the right to receive
and act upon contracts to build or improve schools for public purposes, to
expend public funds for project completion, to negotiate and to consummate the
sale of bond issues to finance these projects and to handle all aspects of
financing and completion of these projects. However, you indicate that "our
board" does not do so because it has no act of °projects underway at this time.
No projects are contemplated and the Authority is phasing itself out and
currently it collects rentals which are earmarked and used exclusively for
bond interest and redemption.
Finally, you indicate that the Authority was created under the
Municipalities Authority Act of 1945 and its members are not compensated and
are appointed by the School Board of Directors of the City. As to the Library
Board in former correspondence, you had indicated that the Board of Directors
of the School District of the City of Allentown, by Petition and Court Order,
had assumed operations of the Allentown Public Library. The School Board
Directors appoint the members of the Allentown Public Library Board,
hereinafter the Library Board, under the Pennsylvania Library Code. The
Library Board sets library operating policy, approves the operating budget of
the library, and determines how library funds shall he expended and approves
selection of the library employees. However, members of this Board are not
compensated.
William G. Malkames, Solicitor
January 9, 1984
Page 2
Procedurally, I should outline as well, the prior correspondence that we
have had in relation to the questions you raise in this most recent
correspondence. Specifically, by letter dated November 24, 1981, you had
originally corresponded to our office and requested information relating to
the questions outlined above. By letter of December 8, 1931, the Executive
Director of the State Ethics Commission, Edward M. Seladones, responded to you
indicating that you would be received an Advice of Counsel pursuant to
Sections 7()(i) of the Ethics Act. In your most recent letter, December 23,
1983, you correctly state that our letter of December 8, 1981, had indicated
that you would receive a response to your inquiry "as soon as possible."
However, your correspondence of December 23, 1983, indicates that you have had
no response to your "inquiry to date." This statement is incorrect.
In fact, by letter dated January 5, 1982, I had communicated to you
indicating that although you had requested an opinion from the State Ethics
Commission and we had indicated an advice would be issued, I could provide you
with information relating to the Commission's interpretation of the Court
ruling in Snider v, State Ethics Commission, 436 A.2d 593 (1981). By my
letter dated January 5, 1982, 1 enclosed a copy of the recent Advice of
Counsel in Corapi, 81 -644, suggested that you should adopt a "wait and see"
posture wit1T respect to your request for Advice and stated that if waiting was
"riot acceptable, plese let me know."
I had no further correspondence from you until July 12, 1982, at which
time I received your letter of that date once more asking whether the members
of the Library Board or your Authority were exempt from filing Financial
Interest Statements under the State Ethics Act. Subsequent to that
correspondence, by letter dated July 20, 1982 (copy attached), I forwarded to
you my letter which responded to your letter of July 12, 1982 and confirmed
our telephone conversation of July 19, 1982. Insofar as your letter of July
12, 1982, had again requested ruling with respect to the current applicability
of the State Ethics Act to the Board and Authority members, I once again,
indicated to you that such persons who were appointed and uncompensated would
not be required to file a Financial Interest Statement. As you can see from
the last paragraph of my letter to you of July 20, 1982, you indicated that a
formal written opinion would not be required at this time in relation to the
applicability of the Ethics Act to the Library Board members or the School
Authority members.
As a consequence of this correspondence and our communications evidencing
my understanding and your agreement that a formal ruling was not required, you
have received no formal written advice in response to either your letter of
November 24, 1981 or your letter of July 12, 1982. However, such formal
advice was, in my understanding of our prior communications, unnecessary to
this date. However, informal responses to your inquiries have been provided
although, at this point in time, it is apparent that a formal advice is being
requested. Accordingly, this Advice is issued.
William G. Malkames, Solicitor
January 9, 1984
Page 3
Discussion: The Ethics Act governs the conduct of all public officials who
are elected or appointed as officials in the executive, legislative, or
judicial branches of the state or any subdivision thereof. The definition of
the persons covered by the State Ethics Act and required to file Financial
Interests Statements pursuant to Section 4 of the State Ethics Act includes
those persons within the category of "public official" as defined in the State
Ethics Act as follows:
"Public official." Any elected or appointed official in
the Executive, Legislative or Judicial Branch of the State
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.
"Public official" shall not include any appointed official
who receives no compensation other than reimbursement for
actual expenses.
Generally, the Ethics Commission has not applied the financial reporting
and disclosure provisions of the State Ethics Act to persons who are appointed
and not compensated. The Ethics Commission recognizes the ruling of the State
Supreme Court in Snider v. State Ethics Commission, 436 A.2d 593 (1981).
However, the Commission is continuing its review of the question of the impact
of this decision and if regulations would be adopted that would apply this
ruling to persons other than the School Board Directors affected by that case,
persons effected would be notified through publication in the Pennsylvania
Bulletin and otherwise.
As a result, the Commission's current position in relation to the
applicability of the State Ethics Act to unpaid appointed officials is that
such persons need not comply with the requirements of the financial reporting
and disclosure requirements of the State Ethics Act.
Conclusion: Assuming that the individual members of the Authority and the
Board outlined above are appointed and not paid other than reimbursement for
actual expenses, they need not, until further notice, comply with the
financial reporting and disclosure provisions of the State Ethics Act.
William G. Malkames, Solicitor
January 9, 1984
Page 4
Pursuant to Section 7(9)(ii), this 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, 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.
SSC /rdp
Attachment
Si erely,
/
ndra S. Ch stianson
General Counsel