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