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HomeMy WebLinkAbout84-584 HartmanMr. C. Richard Hartman Franklin Township Municipal Authority Box 4 Cashtown, PA 17310 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 July 5, 1984 ADVICE OF COUNSEL 84 -584 Re: Municipal Authority; Treatment Plant Technician; Public Employee; Statement of Financial Interests; Not Covered Dear Mr. Hartman: This responds to your letters of April 16, 1984, and May 4, 1984, in which you requested advice from the State Ethics Commission. , Issue: You ask whether you, as anon- compensated member of the Franklin Township Municipal Authority, must file a Statement of Financial Interests where you serve the Municipal Authority, hereinafter, the Authority, as a treatment plant technician and are "compensated" for insurance purposes only. Facts: You have been a member of the Franklin Township Municipal Authority Board since its formation in 1978. Until late in 1983, you also serve the authority as an uncompensated treatment plant technician. In your capacity as treatment plant technician, you treat Franklin Township's drinking water on a daily basis, take daily chlorine readings, and deliver water samples to the Chambersburg Water Treatment Lab. Late in 1983, the Township Auditors discovered that your services were not covered by insurance because they were of a non - compensated nature. As a result, the Authority Board decided that in order to obtain insurance coverage for your services, it would be necessary to reimburse you for those services. You state that such reimbursement is not for your services as a treatment plant technician per se, but merely to cover your expenses in this capacity. You are aware that the Ethics Act states that if persons are appointed and unpaid, they are not required to file a Statement of Financial Interests regardless of their authority to expend public monies. You are further aware that reimbursement for actual expenses incurred is not to be considered compensation. On the contrary, persons who are appointed and paid, must file Statements of Financial Interests. In this regard, you would like to know Mr. C. Richard Hartman July 5, 1984 Page2 whether your simultaneous service to the Municipal Authority as a member of the Board and as a treatment plant technician constitutes a conflict of interest, and whether or not you as a treatment plant technician are to be considered a public employee who must file a Statement of Financial Interests. Discussion: As you are aware, there is some question as to whether appointed, uncompensated members of municipal authorities like yourself, can be considered to be a "public official" within the current definition of that term as contained in the Ethics Act. See 65 P.S. 402. Within this definition, there is currently an exclusion for those persons who are appointed to the positions and who are not compensated, other than for reimbursement for actual expenses. While the ruling of the Supreme Court in Snyder v. State Ethics Commission, 436 A.2d 593 (1981), has cast some doubt upon this exclusion, the State Ethics Commission has not yet interpreted this ruling to require non - compensated, appointed persons such as members of a Municipal Authority to be considered "public officials" subject to the provisions of the Ethics Act. Thus, in your capacity as a member of the Municipal Authority Board, it would not be appropriate to apply the provisions of the Ethics Act to your conduct in general, as you do not clearly fall within the definition of the term "public official" whose conduct would be subject to regulation under the Ethics Act. In this regard, as a Municipal Authority Board member, you would not be required to file a Statement of Financial Interests. Although you are not to be considered a "public official" as an appointed, uncompensated Municipal Authority Board member, where you do receive compensation, for performing services we must question whether you are an employee of the Authority. In this regard, the Commission must determine whether, as a treatment plant technician for the Authority, you are to be considered a public employee for purposes of filing a Statement of Financial Interests under the Ethics Act. The applicable provision of the Ethics Act are contained in Section 2 of the Act and reads: Section 2. Definitions. "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; Mr. C. Richard Hartman July 5, 1984 Page 3 (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. Although Commission policy is that doubts as to coverage of a particular person or group of persons by the Act should be resolved in favor of inclusion of a person within the definition of "public employee ", your duties as a treatment plant technician do not fall within the definition of a public employee as set forth above. As you have described your job, you are responsible for duties only of a ministerial nature, and as a treatment plant technician, you apparently have no authority with respect to taking or recommending official action regarding any of the categories 1 - 5 as set forth in the definition of public employee above. In light of the fact that your duties are of a ministerial nature only, and the fact that we have not found you to be a "public employee" subject to the restrictions of the State Ethics Act, we have further found that you need not file a Statement of Financial Interests as a treatment plant technician. You may, therefore, continue in your capacity as treatment plant technician without creating any conflict of interest or the appearance thereof between your public employment and your membership on the Authority Board. Conclusion: As a member of the Authority, under these facts, you are not to be considered a "public official" or subject to the financial disclosure requirements of the Ethics Act. Although you are a "compensated" employee of the Franklin Township Municipal Authority, you need not file a Statement of Financial Interests because your duties as a Treatment Plant Technician are of a ministerial nature and you are not a "public employee" subject to the Ethics Act. 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. Mr. C. Richard Hartman July 5, 1984 Page 4 A personal appearance before the full 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. S SC /n a Sandra S. Chi, stianson General Cou6sel