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HomeMy WebLinkAbout83-520 Strader• James D. Strader 202 Main Entrance Drive Mt. Lebanon, PA 15228 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 March 8, 1983 ADVICE OF COUNSEL RE: Financial Disclosure; Spousal Data Dear Mr. Strader: 83 -520 This responds to your letter of February 15, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask what responsibility and liability exists if you as a candidate in the primary election, cannot obtain inforamtion as to your spouse's financial information. Facts: You intend to be a candidate for the nomination for the Office of Commissioner in Mt. Lebanon, a home -rule municipality in Allegheny County. You state your spouse may refuse to divulge the financial inforamtion needed to complete the Financial Interest Statement (FIS) required of candidates for public office. Your wife expressed concern that information such as real property assessment data may be used in "attacking" a public office holder for his stand on an issue. Accordingly, she has informed you she has no intention of providing you with the information necessary to fully complete the FIS. You are aware of the injunction currently in effect in the Denoncourt matter (No. 2793 C.D. 1981) which relieves school directors and candidates for that post from providing financial data as to spouses and minor dependent children. You ask that this injunction be applied to you. Discussion: As a candidate for public office you must comply with Section 4(b) which states that: (b) Each candidate for public office shall file a statement of financial interests for the preceding calendar year with the commission prior to filing a petition to appear on the ballot for election as a public official. A petition to appear on the ballot shall not be accepted by an election official unless the petition includes an affidavit that the candidate has filed the required statement of financial interests with the commission. 65 P.S. 404(b). State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania James D. Strader March 8, 1983 Page 2 Thus, unless you file a Financial Interest Statement and swear to the fact that same is completed, the appropriate election official would have no choice but to reject your nomination petitions. Your concern is that if you file an FIS which may not provide the complete financial data as to your spouse, you may incur some difficulty. It is true that Section 5(b) of the Ethics Act requires that, as to the FIS that:, The statement shall include the following information for the prior calendar year with regard to the person required to file the statement and the members of his immediate family: (1) The name, address and position of the person required to file the statement. (2) The occupations or professions of the person required to file the statement and those of his immediate family. (3) Any direct or indirect interest in any real estate which was sold or leased to the Commonwealth, any of its agencies or political subdivisions; purchased or leased from the Commonwealth, any of its agencies or political subdivisions; or which was the subject of any condemnation proceedings by the Commonwealth, any of its agencies or political subdivisions. (4) The name and address of each creditor to whom is owed in excess of $5,000 and the interest rate thereon. However, loans or credit extended between members of the immediate family and mortgages securing real property which is the principal residence of the person filing or of his spouse shall not be included. (5) The name and address of any person who.is the direct or indirect source of income totalling in the aggregate $500 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics. James D. Strader March 8, 1983 Page 3 (6) The name and address of any person from whom a gift or gifts valued in the aggregate at $200 or more were received, and the value and the circumstances of each gift. However, this provision shall not be applicable to gifts received from the individual's spouse, parents, parents by marriage, siblings, children or grandchildren.* (7) The source of any honorarium received which is in excess of $100. (8) Any office, directorship or employment of any nature whatsoever in any business entity. (9) Any financial interest in any legal entity engaged in business for profit. 65 P.S. 405(b). There is no doubt that you must, if possible and to the fullest extent possible provide the required information. There is no basis for us to conclude otherwise. The litigation in Denoncourt, referenced above, relates only to the class of school directors and candidates for that office. We cannot presume that the limited injunction issued in Denoncourt applies to candidates for all offices. We are not inclined to generally extend this injunction, even if same were possible. However, it should be noted that even in Denoncourt, in the Brief filed in that matter the State Ethics Commission argued that a person truly unable to comply with the spousal reporting portions of the Ethics Act may face minimal difficulties. This is true because the penalty associated with failing to comply with Section 5 of the Ethics Act is as set forth in Section 5(a) of the Ethics Act, 65 P.S. 405(a) the one prescribed for perjury. As set forth in our Brief in Denoncourt, a perjury problem would arise only if criminal liability, including culpability, or at least negligence, exists. Thus, where an honest and valid attempt is made to secure the required spousal data and reporting is made as to the spousal data known to the filer, it is consistent with our argument in Denoncourt to conclude that a filer would face no repercussions upon review by the State Ethics Commission. Of course, it would remain for a factual determination to be made as to whether valid and honest attempts were made to secure the spousal information. However, assuming same to exist, same would, in my opinion, be sufficient to avoid penalties of perjury associated with Section 5(a) and (b) of the Ethics Act. James D. Strader March 8, 1983 Page 4 Finally, we address your wife's "fear" that real property assessment data may be used to "attack" your positions as a candidate or office - holder. The Ethics Act does not require disclosure of data relating to real property assessments. Please note the specific information required by Section 5(b) of the Ethics Act (copy enclosed). The data required is general and reportable except under Section 5(b)(6) relating to gifts. Conclusion: There is no power or reason for an extension of the Denoncourt injunction to cover the situation you present. You should make an honest and valid attempt to ascertain the data required to be reported which relates to your spouse, report fully that data required of yourself and your minor dependent children and file your FIS as required by Section 4(b) ofithe Ethics Act. 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 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 Sincerely, Sandra S. Christianson General Counsel