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HomeMy WebLinkAbout81-516 StoppCharles W. Stopp, Esquire Steckel and Stopp 1036 Main Street Slatington, PA 18080 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 February 20, 1981 ADVICE OF COUNSEL 81 -516 RE: Joint Planning Commission, Applicability of Ethics Act Dear Attorney Stopp: This responds to your communication of January 9, 1981. Issue: In your communication you requested an opinion as to whether the financial reporting and disclosure requirements of the Ethics Act apply to the members and staff employees of the Lehigh and Northampton Counties Joint Planning Commission. Facts: You indicated that the members of the Lehigh and Northampton Counties Joint Planning Commission (hereinafter Planning Commission) receive no salary for services rendered in their capacity as planning commission members. The members are appointed and may in some instances be public officials in other municipalities. The Joint Planning Commission also employs staff personnel who are paid by the Joint Planning Commission and not a political subdi- vision which may be a part of the Joint Planning Commission. Discussion: The Ethics Act in its definition of "public official" excludes from that definition persons who are appointed but who receive no compensation other than reimbursement for actual expenses from the purview of the Act. Thus, under the facts which you have presented, members of the Joint Planning Commission who are appointed but receive no compensation other than actual expenses are not required to file Financial Interest Statements. toebruary GU, 1961 Page 2 In addition, these members of the Joint Planning Commission, who are "appointed" are not subject to a confir- mation process such as is contemplated under the regulations promulgated by the Ethics Commission. Specifically, the definition of "confirmation" in the Ethics Commission's regulations is as follows: "a nomination by one person or a group approved by a separate and unrelated person or group." From the facts which you have presented this process does not appear to be applicable to the process of appointment of members of the Joint Planning Commission. Accordingly, the Ethics Commission Opinion in Hollander, 80 -037 is inappli- cable. Hollander dealt with the situation in which the unpaid members of an advisory board were subject to appoint- ment by the Governor and confirmation by the Senate of the Commonwealth. Since such a process or a similar process is not applicable in the case of the appointment of Joint Planning Commission members these persons would not have to file annual financial statements or Financial Interest Statements prior to appointment. As to the question of whether staff members of the Joint Planning Commission are "public employees" for the purposes of the Ethics Act, we conclude that certain members of the staff of the Joint Planning Commission probably fall within the definition and are covered by the provisions of the Ethics Act. Specifically, those staff members who have the authority to recommend or take actions of a non - ministerial nature relating to the areas of contracting or procurement; administering or monitoring grants for subsidies; planning or zoning; inspecting licensing, regulating or auditing any person; or any other activity where the official action has an ecomonic impact of a greater than de minimus nature these persons would be considered "public employees." See 65 P.S. 402. This conclusion is required due to the fact that the definitions of the term "political subdivision" within the regulations of the Ethics Commission includes any county and "any governmental body organized" by any county. Thus the Joint Planning Commission would constitute an entity within the purview of the Ethics Act as to those employees who fall within the definition of "public employee" contained in the Ethics Act. Finally, if any doubt exists as to the inclusion of any particular persons or entity within the coverage of the Ethics Act, the requirements that the Act be liberally construed appears to compel the conclusion that these persons should be subject to the Ethics Act. I note that the Commonwealth Court has recently reiterated this conclusion in relation to the Turnpike Commission (Camiel v. State Ethics Commission, No 1122 C.D. 1980, filed February 9, Charles W. Stopp, Esquire February 20, 1981 Page 3 1981) and Municipal Authorities, in general, (Forney v. State Ethics Commission, No. 1003 C.D. 1980, filed February 10, 1981). In these decisions the Court indicated that even where a particular entity could not be specifically placed within one of the branches of State Government or a political subdivision thereof, that a review of the duties, obligations, and responsibilities of the entity revealed that coverage of the Ethics Act was appropriate. Those individuals who are deemed to be "public employees" should file Financial Interest Statements with the Joint Planning Commission. If members of the Joint Planning Commission who are otherwise not to be deemed "public officials" while serving on the Joint Planning Commission are public official in municipalities and would otherwise be required to file such statements, this ruling has no effect on the requirement that they file such state- ments as "public officials" in those municipalities. Conclusion: Those persons who serve as members of the Joint Planning Commission who receive no compensation other than reimbursement for actual expenses are not required to file annual financial statements. These same individuals are not subject to a "confirmation" process. Accordingly, such individuals are not required to file Financial Statements prior to their appointment. If these persons are public officials in other municipalities and by virtue of that capacity are required to file Financial Interest Statements, this decision does not remove that requirement. However, those persons that serve as "public employees" within the definition of that term as discussed above and who are employed by the Joint Planning Commission are required to file annual Financial Interest Statements. These statements should be filed with the Joint Planning Commission and are due no later than May 1, 1981. We would be glad to send a supply of these forms and answer any questions in regard to execution of these forms. Please feel free to call our toll free number to secure this assistance. This number is 800 - 932 -0936. If there are questions which involved individual staff members, these must be answered initially by the Planning Commission. The State Ethics Commission will review specific job classifica- tions and duties, if requested, if questions or doubts as to inclusion of a "public employee" exist. Charles W. Stopp February 20, 1981 Page 4 complete i Pursuant to Section 7(9rpi) , this Advice proceeding initiated by the is a comp other defense in any enforcement evi evidence P ood faith conduct in any has and evidence of good the req civi ls o ron , proceeding, P disclosed or criminal P all the material facts Advice co vitte disclosed truthfully the acts complained of in reliance made avail - • This letter is a public record and will be able as such. you i f yo u disagree with this Advice or request if yo the y , r a same, appearance reason to challenge you may A Pe rsonal aPP inion full Co a l ap formal ar full Commission review ay this Advice. and before the Commission may issued. You should make such a from the cate your disapproval of this Advice within request or Inn dic the next 30 days. Sincerely, SSC /rdp /4-Sandra S. Ch stianson General Col) sel