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HomeMy WebLinkAbout84-619 PostalSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 15, 1984 Mr. Robert P. Postal Executive Director Mifflin County Industrial Development Corporation Assistant Secretary Mifflin County Industrial Development Authority One Belle Avenue Mifflin County Industrial Plaza Lewistown, PA 17044 84 - 619 RE: Industrial Development Authority, Industrial Develop- ment Corporation, Public Employee Dear Mr. Postal: This responds to your letter of August 20, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether you are to be considered a "public employee" who must file a Statement of Financial Interests under the State Ethics Act in your capacity as Executive Director of the Mifflin County Industrial Development Corporation and as Assistant Secretary of the Mifflin County Industrial Develoment Authority. Facts: You indicate that you currently serve as Executive Director of the Mifflin County Industrial Development Corporation, hereinafter, the Corporation, and as Assistant Secretary of the Mifflin County Industrial Development Authority, hereinafter, the Authority. The Corporation is a non - profit, not public, industrial development corporation responsible for marketing and assisting businesses in Mr. Robert P. Postal October 15, 1984 Page 2 Mifflin County. The Authority is an industrial development authority established under the Industrial Development Authority Law. Essentially, you would be considered the chief operating officer for both agencies even though you report to the respective Boards of Directors for the Corporation and the Authority. You have provided us with additional information including the Articles of Incorporation for the Corporation under the non - profit Corporation Law of 1933. Further, in your letter of August 20, 1984, you indicate that while you were a part of the staff of both the Corporation and the Authority, you were paid entirely by the Corporation. This Corporation, as set forth above, is a non - profit development corporation with no affiliation to any level of government. However, the Authority members are appointed by the County Commissioners in accordance with the Industrial Development Authority Law of 1967. In each capacity, with the Authority and with the Corporation, you are responsible for the daily operation of the properties and you provided us with a job description which indicates that you are responsible for the overall operations of the Corporation and the Authority including the following activities: 1. Managing properties owned by the Corporation and the Authority and making recommendations on specific modifications, improvements, or changes in the Corporation's physical assets which will improve profitability, marketability, or tenant - Corporation relations and industrial prospects. 2. Managing the activities of all hourly employees of the Corporation; supervising all daily corporate activities; monitoring the financial operations, budgets, projections, physical conditions, and audits required by the CCorporation. 3. Marketing the assets of the Corporation in the County to industrial development prospects, including the expansion of local industries, relocation, startup industries and retention of exising industries or facilities. 4. Assisting industries, both existing and potential, with securing financing using commercial, state, and federal sources. Mr. Robert P. Postal October 15, 1984 Page 3 5. As Assistant Secretary of the Authority, you process Pennsylvania revenue, bond, and mortgage loan applications for industries and commercial ventures and you process construction loan monies, including making inspections of properties during construction. 6. You help formulate, update, and recommend long - range plans for both the Corporation's and the Authority's activities. 7. You provide direct supervision to maintenance foremen, security personnel, and secretarial and bookkeeping personnel. Discussion: The basic question to be answered here is simple: Are you a "public employee" as that term is defined in the State Ethics Act and, therefore, are you subject, as such, to the financial reporting and disclosure requirements of the State Ethics Act. The definition of public employee must be reviewed as follows: 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; (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. Mr. Robert P. Postal October 15, 1984 Page 4 In answering this question, we must also recognize that municipal authorities are generally considered "agencies" of the Commonwealth and part of its sovereignty whose paid members can be considered "public officials" and whose employees can be considered to be "individuals employed by the Commonwealth" as set forth in the State Ethics Act's definition of "public employee." See Forney v. State Ethics Commission, 56 Pa. Cmwlth. 539, 425 A.2d 66 (1981). Hence, if an individual otherwise falls within the definition of "public official" or "public employee." there is no reason why these individuals should be excluded from the coverage of the Ethics Act as "public officials" or "public employees." If you would otherwise fall within the definition of "public employee" while working with the Authority, for example, the Ethics Act could extend to you and require that you file a Statement of Financial Interests. Given your job description and your duties and responsi- bilities for the Authority, by whom you are "employed ", we must conclude that you have the power to take or recommend official action of a non - ministerial nature with respect to categories (1), (2), and (5) of the definition of "public employee" as set forth in Section 2 of the Ethics Act. Accordingly, in your capacity as Assistant Secretary for the Authority, you are to be considered a "public employee" as that term is defined in the State Ethics Act. Thus, as such, you should file a Statement of Financial Interests in accordance with the Ethics Act. Having decided that you are a "public employee" by virtue of your position and responsibility as Assistant Secretary for the Authority, it is unnecessary to decide whether you are covered as a "public employee" as set forth in the Ethics Act in your capacity as Executive Director of the Corporation. Conclusion: Based upon the above discussion, we conclude that you are to be considered a "public employee" in your capacity as an Assistant Secretary with the Authority. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the position out- lined above and for the year following your termination of this service. Mr. Robert P. Postal October 15, 1984 Page 5 If you have not already done so, a Statement of Financial Interests must be filed within 15 days of this Advice. This Statement of Financial Interests would report information of the prior calendar year. Please file the original of such a Statement with this Commission to insure compliance with this Advice, provide the yellow copy to your Personnel Office and retain the green copy for your records. 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. such. This letter is a public record and will be available as 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: FIS Sin erely, Sandra S. Chris,'ianson General Couns