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Home My WebLink About82-543 WeistFred J. Wiest, Esquire Williamson, Friedberg & Jones American Bank Building Pottsville, PA 17901 Dear Mr. Wiest: Mailin Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 May 10, 1982 ADVICE OF COUNSEL State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 82 -543 RE: Treasurer, Tremont Municipal Authority, Bank as Depository This responds to your letter of April 14, 1982 in which you requested advice of the State Ethics Commission. Issue: You asked whether there is a conflict of interest between an individual's appointment as Treasurer of a Municipal Authority and his position as Chief Executive Officer of the depository of the Authority and whether that Treasurer is a public employee or public official subject to the provisions of Act 170 so as to require him to file a Financial Interest Statement. Facts: At its regular meeting of January 7, 1982, the Board of the Tremont Borough Authority (Authority) appointed the Tremont National Bank as its depository. Subsequently, at its meeting of February 4, 1982, the Authority appointed Marlin Hoff as its Treasurer. Mr. Hoff is the Cashier and Chief Executive of the Tremont National Bank which had been named previously as the Authority depository. While Mr. Hoff holds no other public office or employ- ment he is required by the terms of his job description as. Treasurer for the Authority to perform designated duties as Treasurer for a one -year period. These duties include: receiving all funds payable to the Authority; depositing these funds with the depository named by the Authority; investing the funds to the Authority as directed by the Financial Committee of the Authority; maintaining financial records required by the Authority; making monthly reports to the Board of the Authority and cooperating with the Authority Auditor in general; counter- signing checks with an officer of the Board; assisting the Authority in application for government grants and aiding in the preparation of the Authority's annual budget. Fred J. Wiest, Esquire May 10, 1982 Page 2 Compensation for these services was set by the Authority at $150 per month. In addition, it should be noted that Mr. Hoff had no role in participating as a member or otherwise in the decision made to appoint the Tremont National Bank as depository by the Authority. Discussion: In order to address the questions you present it is necessary to answer your second que.tion first. Specifically; is Mr. Hoff a public official or public employee subject to the provisions of the Ethics Act so as to require him to file a Financial Interest Statement or to be otherwise subject to the restrictions of the Ethics Act? The Ethics Act contains specific definitions for the terms "public official" and "public employee." The definition of "public employee" is as follows: Any individual employed by the Common- wealth or a political subdivision who is responsible for taking or recommen- ding 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, regula- ting or auditing any person; or 5) any other activity where the officia` action has an economic impact of greater than a de minimus nature on the interests of any person. 65 P. S. 402. The definition of "public official" contained in the same Section of the Ethics Act is as follows: 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 power of the State or any political subdivision thereof. Fred J. Wiest, Esquire May 10, 1982 Page 3 'Public Official' shall not include any appointed official who receives no compensation other than reim- bursement for actual expenses. 65 P.S. 402 These definitions must be applied to the job duties and responsibilities assigned to the Treasurer of the Authority. First, we do not believe that Mr. Hoff as Treasurer would be considered a "public employee." This is because the job description and duties listed above do not appear to indicate that Mr. Hoff would be responsible for taking or recommending official action of a nonministerial nature with regard to any of the categories contained within the definition of "public employee." Typically, the Commission has decided that a Secretary - Treasurer of a municipality whose duties are simply ministerial and who are not acting as actual managers or persons with discretion relating to investing and expenditures would be considered "public employees." Mr. Hoff does not appear to fall within the definition of "public employee" given this definition and the prior Commission rulings on this point. Likewise, this same analysis has been applied to the designation of a Treasurer as an official. Consequently, we conclude that Mr. Hoff is not a "public official" subject to the reporting and disclosure requirements applicable to "public officals ". Specifically, the position of Treasurer does not appear to be a position designated by the Code, Charter or the like of the Commonwealth or its political subdivisions as provided for in the regulations of the Commission. See 51 Pa. Code 1.1, definition of "public official." Given the conclusion Mr. Hoff is not a public official or public employee subject to the financial reporting and disclosure requirements of the State Ethics Act there would be no provisions of the conflict of interest (restricted activities) provisions of the Ethics Act which would apply to Mr. Hoff as a "public employee" or a "public official." Thus, there would be no conflict of interest between Mr. Hoff's position as Chief Executive Officer of the Depository of the Authority in his position as Treasurer of the Authority. Fred J. Wiest, Esquire May 10, 1982 Page 4 It should be noted that even if Mr. ..off were to be considered a "public employee" or a "public official" subject to the provisions of the Ethics Act t`ic - -: :e yould still be no conflict of interest between his holding of the position of Chief Executive Officer of the depository of the Authority and his position as Treasurer of the Authority, per se. This is particularly true where Mr. Hoff had no role in appointment of the Tremont National bank as depository for the Authority. Similarly, there is no indication that he used his "public office" for obtaining financial gain for himself, a member of his immediate family, oL: a business with which -he associated under the circum- stances of the appointment of the Tremont National Bark as depository for the Authority outlined above. Conclusion: Mr. Hoff as Treasurer of the Tremont Borough Authority, given the job duties and descriptions detailed above, does not fall within the definition of "public empicyee" or "public official" contained in the Ethics Act so as to require him to file a Statement of Financial Interests under Section 4 of the Ethics Act, 65 P.S. 404. Likewise, there is no conflict of interest between Mr. Hoff's appointment to or holding of the position as Chief Executive Officer of the depository of the Authority and nis position as appointed Treasurer for the Authority under the circumstances. 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. A personal appearance before the Commission may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /rdp Sincerely, Sandra S ristianson General Counsel