Loading...
HomeMy WebLinkAbout86-517 WolfeSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 February 12, 1986 ADVICE OF COUNSEL Marc R. Wolfe, Esquire 712 Monroe Street -Stroudsburg, PA 18360 Re: Public Officials, Statement of Financial Interests, Members, Municipal and Industrial Development Authorities; Attorneys Dear Mr. Wolfe: 86 -517 This responds to your letter of January 20, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether the non - compensated memhers of municipal authorities and industrial development authorities are required to file the Statement of Financial Interests as set forth by the State Ethics Act. Facts: You currently serve as the Solicitor for the Monroe County Transportation Authority, the Monroe County Industrial Authority, and the Pocono Mountains Industrial Park Authority. You have been asked by the hoard memhers of each of these authorities to determine if they must file the Statement of Financial Interests as set forth in the State Ethics Act. You indicate that the memhers of these authorities are appointed by the Monroe County Roard of Commissioners. These individuals serve without compensation except for the reimbursement of actual expenses. You further advise that two of the memhers of these authorities are practicing attorneys in the Commonwealth of Pennsylvania. You indicate that while they are attorneys, they serve on the hoard only as memhers and do not provide legal services or express legal opinions with relation to the conduct of the authority. You have requested the advice of the State Ethics Commission as to whether the memhers of the various authorities are required to file the Statement of Financial Interests and whether the attorneys so serving are exempt from this filing requirement. Discussion: The State Ethics Commission has recently determined that non - compensated memhers of municipal authorities that are formed under the Pennsylvania Municipal Authorities Act, 53 P.S. 6301 et. seq., are puhlic officials within the purview of the State Ethics Act and, therefore, required to file Statements of Financial Interests. See Dice, 85 -021. In an effort to provide you with an indication of the reasoning in tTis opinion, we will hriefly set forth our analysis in that opinion. Marc R. Wolfe, Esquire February 12, 1986 Page 2 The definition of public official as set forth in the State Ethics Act, provides as follows: Section 2. Definitions. "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. 65 P.S. 402. In Snider v. Thornburgh, 469 Pa. 159, 436 A.2d 593, (1981). The Supreme Court of Pennsylvania found that the above definitional phrase was unconstitutional insofar as it operated to exempt appointed/non-compensated officials from Ethics Act coverage. As a result, the court stated that the exclusion of appointed /non - compensated officals from the definition of public officials is removed. Thus, the only question to be resolved is whether, under the Ethics Act as it now exists, municipal authority members are required to file a Statement of Financial Interests. The Act sets forth the relevant filing requirements as follows: Section 4. Statement of financial interests required to be filed. (d) No public official shall be allowed to take the oath of office or enter or continue upon his duties, nor shall he receive compensation from public funds, unless he has filed a statement of financial interests with the commission as required by this act. 65 P.S. 404(d). Judicial decisions have also firmly established that the filing requirement of the Act is equally applicable to public employees and public officials. See Kremer v. State Ethics Commission, 56 Pa. Commw. 160, 424 A.2d 968, at 969 (1981); reversed on other grounds 503 Pa. 358, 469 A.2d 593, (1983). The tens public official must now be defined as follows: Marc R. Wolfe, Esquire February 12, 1986 Page 3 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 subdivsion thereof. 65 P.S. §402 (as modified by Snider v. Thornburgh, Supra.) In order to determine whether municipal authority members are public officials within this definition, it must be determined whether or not such authorities are merely advisory boards that have no power to expend public funds or otherwise exercise the power of the State or political subdivisions. Municipal authorities are clearly independent agencies that are part of the Commonwealth. Commonwealth v. Erie Metropolitan Transit Authority, 2.81 A.2d 882, 444 Pa. 345, (19/1). Appointed members of such agencies are, without doubt, "public officials." One need look no further than the powers and duties of said authorities in order to determine that they are more than advisory in nature and do, in fact, have the power to exercise the power of the State. See, 53 P.S. .$306. We will not outline here all of these powers as they are clearly delineated in the Municipal Authorities Act. Indeed, a number of judicial pronouncements have already held such authority members to be public officials. Commonwealth ex. rel.' McCreary v. Major, 343 Pa. 355, 22 A.2d 686, (1941). In Forney v. State Ethics Commission, 56 Pa. Commw. 539, 425 A.2d 66, (1981), it was clearly established that such members were public officials within the purview of the Ethics Act. Except for the then existing exemption, all authority members would have been required to file the Statement of Financial Interests. The Commission, based upon the foregoing reasoning, determined that members of municipal authorities that have been formed pursuant to the Pennsylvania Municipal Authorities Act are, i n_ fact, requi red to file Statements of Financial Interests pursuant to the State Ethics Act regardless of whether they receive compensation. The Commission, however, has not to date, addressed the issue of whether members of Industrial Development Authorities are covered under the Act. The Commission, pursuant to the previously issued opinion, Dice, indicated that the Commission would he promulgating rules and regulations in order to establish criteria to determine whether the members of other governmental bodies that were once not affected Marc R. Wolfe, Esquire February 12, 1986 Page 4 by the State Ethics Act are now brought within the purview of the law. Thus, until the promulgation of said rules and guidelines, members of other governmental bodies that were exempt from Ethics Act coverage will not be required to file Statements of Financial Interests. We note, for the sake of being complete, that the required filing for members of municipal authorities is effective for the filing deadline of May 1, 1986. Thus, in accordance with the above, the members of the municipal authority set forth in your letter would be required to file Statements of Financial Interests. The members of the Industrial Develoment Authority would not be required to file at this time. These individuals may, however, be requi red to file after the promul gation of the guidelines set forth above. In relation to the Industrial Park Authority, you do not indicate if this authority is formed under the Industrial Development Authority Laws of Pennsylvania or whether it is formed under the Municipal Authorities Act. Depending upon the enabling legislation pursuant to which this authority has been created, this entity may or may not be required to file for the May 1, 1986 deadline. In addition to the second part of your question, the Ethics Commission to date requi res filing by all public officials regardless of whether they are attorneys. To date there is no Pennsylvania case law which would exempt full -time publicly employed attorneys, or attorneys who are serving in public positions that do not otherwise involve the practice of law from filing the Statement of Financial Interests as required under the State Ethics Act. See Maunus, 84-020-B, Thau, 84- 020 -A. Thus, the members of the municipal authorities who are acting only as members and do not provide legal services to the board, for example, as solicitor, are not exempt merely based upon the fact that they are also practicing attorneys. Conclusion: Members of municipal authorities created pursuant to the Pennsylvania Municipal Authorities Act are public officials within the definition of the State Ethics Act and, therefore, required to file a Statement of Financial Interests. Members of other authorities, while not yet requi red to file the Statement of Financial Interests may he requi red to fil e such statement at a future date after the promulgation of criteria as set forth above. Members of municipal authorities who are also practicing attorneys are not exempt from the filing requirements of the State Ethics Act in light of the fact that they do not serve the authority as attorneys or in any legal capacity. Marc R. Wolfe, Esqui re February 12, 1986 Page 5 Pursuant to Section 7(9)(ii), this Advice is a complete 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. Since el y, John J. (;ener. Counsel