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Home My WebLink About83-525 Bruckerc At William G. Brucker, Esquire Gondelman, Baxter, McVerry, Mulvihill, Smith, latch & Trimm 718 Fifth Avenue Pittsburgh, Pennsylvania 15219 -3087 Dear Mr. Brucker: Misting Address STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: 1717) 783 -1610 March 28, 1983 ADVICE OF COUNSEL 83 -525 • RE: Personnel Director, Public Employee, Filing, Content of Financial Interest Statement This responds to your letter of March 15, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask, on behalf of your client, whether he falls within the definition of "public employee" and, therefore, if and when he must file a disclosure statement in 1983 and, if so, whether a particular loan between his wife and her parents must be disclosed. Facts: You indicate that as of March 21, 1983, yourclient will become an assistant director of the personnel department of the local government. His duties will include negotiating on collective bargaining agreements with nine unions in accordance with the policy established by the mayor and he will also be responsible for administering these collective bargaining agreements. The mayor, of course, will retain final approval authority over approving the terms of all collective bargaining agreements, but your client will be engaged in interpreting these agreements for the Departments of the local government and hearing union grievances based or brought under those collective bargaining agreements. Your client will have the discretion to settle grievances or, in some cases, to recommend action to the mayor to settle such grievances. Because your client is assuming his position as of March 21, 1983, you also request information as to when your client, if he is to be considered a "public employee", should file a disclosure statement. Specifically, would a statement be due by May 1, 1983 or by May 1, 1984. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania William G. Brucker, Esquire March 28, 1983 Page 2 Further, you indicate that in August, 1977, your client's wife, who was then his fiancee, decided to buy a house. In order to purchase this house she borrowed $29,000 from her parents at no stated rate of interest, paying the balance of the purchase price for her own funds and obtaining a common tenancy in the property with her parents. Your client took no interest in the property but upon the marriage he and his wife agreed the loan would be repaid from their joint income and that he would receive an entities interest in the property when the loan was repaid, at which time the parents would relinquish their common tenancy interest in the property. At present there is an outstanding balance of $8,200 on this loan. Essentially, this loan agreement, although it is oral, is considered binding by the parties and was made in order, we assume, to purchase the primary residence of your client and his wife. Facts: The Ethics Act is designed to regulate the conduct of "public employees" and "public officials" with the most pertinent definition in this question being that of "public employee" as follows: "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending 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, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. C William G. Brucker, Esquire March 28, 1983 Page 3 Typically, the entire job description of an individual must be reveiwed in order to respond adequately to the question of whether an employee is to be considered a "public employee" within the purview of the Ethics Act. Given the information you have provided, however, your client would appear to have the responsibility for taking or recommending action with relation to grievance procedures which must come under normal circumstances be considered to be non - ministerial action that has a "greater than de minimus economic impact" upon both parties to the grievance procedure. As such, absent any further indication to the contrary, the balance of this advice will find and assume that your client is indeed a "public employee" subject to the provisions of the Ethics Act. As such, it has been our practice to require employees who were hired prior to May 1 of any year to conform to the standards of filing currently required by our regulations as applicable to "public officials." Specifically, the regulations of the Commission in relation to appointed officials are contained in 51 Pa. Code 4.3. In this Section it is indicated that officials generally would be required to file a Financial Interest Statement by May 1 of the year in which they are appointed or within 15 days after appointment if that occurs after May 1 of any particular year. Thus, by practice and analogy, we have generally held that.a public employee who is hired by May 1 of any year should file a Financial Interest Statement for that particular year by May 1. Thus, in the case of your client, filing would be required by May 1, 1983. If your client would, be hired and assume office after May 1, 1983, he would be required to file a Financial Interest Statement within 15 days of his appointment. Finally, you asked whether the loan, as described above, shoud be reported on your client's Financial Interest Statement. Notably, the Ethics Act and the regulations of the Commission exclude from the reporting requirement the mortgage on real property which is the primary residence of the person required to file. See 51, Pa. Code 5.6(b). I believe that this loan, as you have described it above, constitutes a loan- mortgage which would fall within the exclusion of this regulation. Therefore, this loan need not be reported even though the loan balance may be in excess of $5,000 and the Act generally requires reporting of the name and address of each creditor owned such an amount. See Section 5(b)(4) of the Ethics Act, 65 P.S. 405(b)(4). Conclusion: Your client is to be considered a " public employee" subject to the reporting and disclosure requirements and other provisions of the Ethics Act. Your client should file a Financial Interest Statement by May 1, 1983, but may exclude from that report this mortgage -loan under the situation and circumstances described above. William G. Brucker, Esquire March 28, 1983 Page 4 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 Si cerely, Sa dra S. Christianson General Counsel