Loading...
HomeMy WebLinkAbout86-524 FeltyLanny G. Felty, Esquire 320 First & School Streets Pine Grove, PA 17963 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 March 11, 1986 ADVICE OF COUNSEL 86 -524 Re: Divorce Master, Public Employee, Statement of Financial Interests Dear Mr. Felty: This responds to your letter of January 7, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether a Permanent Divorce Master on contract with a county is to he considered a public employee within the purview of the State Ethics Act and, thereby, required to file a Statement of Financial Interests. Facts: You have advised that under the Pennsylvania Divorce Code you have been appointed as a Master by the Court of Common Pleas in your county. You indicate that various counties, including the county where you practice, have chosen to have one person designated as a Permanent Divorce Master to whom all divorce cases are referred. The fees that you obtain for this service are paid into the prothonotary and are turned over by the prothonotary to the county. You receive your compensation directly from the county under a contract. You indicate that you have been retained and employed by the county on a contract basis as a Permanent Divorce Master. Your compensation is a set monthly fee plus a set monthly secretarial stipend. The contract is signed between you and the county commissioners. Pursuant to the Pennsylvania Rules of Civil Procedure, the master is responsible for hearing evidence presented in divorce matters. The master must file a record and a transcript of the testimony together with a report and a recommendation to the court with jurisdiction over the matter. The Lanny G. Felty, Esquire March 11, 1986 Page 2 master's report must contain findings of fact, conclusions of law and a recommendation. Pursuant to the Rules of Civil Procedure, specific items are to he included in the findings of fact. See Pa. R.C.P. 1920.53, 42 Pa. C.S.A. The master's report must contain a recommendation to the court to either deny or grant the divorce in question. The master also must perform certain duties in relation to any claims for alimony or child support. The recommendations of the master, of course, are suhject to review and approval by the appropriate court. piscussion: Initially, it should he noted that the Commission has previously addressed the issue of whether the method of employment of a particular individual who serves a governmental body is determinative in deciding whether said individual is within the purview of the State Ethics Act. Specifically, the Commission has held that the fact that an individual is employed on a contract hasis would not, in and of itself, result in the individual heing declared outside of the scope of the State Ethics Act. See Massiah - Jackson, 80 -036. In that opinion, the Commission determined that an attorney who is employed on a service purchase contract hasis as counsel to a senate committee would he a puhlic employee within the purview of the State Ethics Act, therehy required to file a Statement of Financial Interests. The Commission determined that when an individual performs all of the duties and functions otherwised performed by a puhlic employee, the fact that said individual was employed on a contract hasis as opposed to some other method of employment would not he determinative. Rather it was the scope, functions, and duties of said employment that would he the factors upon which said determination would he made. Thus, the fact that you are employed on a contract hasis with the county, would not automatically exclude you from the purview of the State Ethics Act. In relation to this specific question presented in your letter of request, the Commission has previously ruled that masters serving at the county level would he within the purview of the State Ethics Act and, therehy, required to file Statements of Financial Interests. See McRride, 83 -011. Specifically, the Commission in McRride determined that individuals serving in a position of master for juvenile matters in Reaver County, Pennsylvania, were considered puhlic employees and therehy suhject to the financial reporting and disclosure requirements of the State Ethics Act. This determination was based upon a review of the Act and upon the specific definitions of puhlic employee as set forth in the Act. The State Ethics Act provides as follows: Section 2. Definitions. "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: Lanny G. Felty, Esquire March 11, 19R6 Page 3 (1) contracting or procurement; (2) administering or monitoring grants or suhsidies; (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. "Puhlic employee" shall not include individuals who are employed by the State or any political suhdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. The regulations of the State Ethics Commission further provide as follows: Section 1.1. Definitions. Puhlic employee - -- (R) who meets the criteria of either suhclause (I) or (II): (I) The individual is: ( -a -) a person who normally performs his responsihility in the field without on -site supervision; ( -h -) the immediate supervisor of a person who normally performs his responsihility in the field without on -site supervision; or ( -c -) the supervisor of any highest level field office. (II) The individual is a person: ( -a -) who: ( -1 -) has the authority to make final decisions; Lanny G. Felty, Esquire March 11, 1q86 Page 4 ( -2 -) has the authority to forward or stop recommendations from heing sent to the person or holy with the authority to make final decisions; ( -3 -) prepares or supervises the preparation of final recommendations; or ( -4 -) makes the final technical recommendations; and ( -h -) whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization. (ii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iii) Persons in the positions listed below are generally considered puhlic employees. (A) Executive and special directors or assistants reporting directly to the agency head or governing hody. (R) Commonwealth hureau directors, division chiefs, or heads of equivalent organization elements and other governmental hody department heads. (C) Staff attorneys engaged in representing the department, agency, or other governmental holies hefore the puhlic. Rased upon the foregoing, the Commission has determined that one who serves as a master is not exempt from filing hecause said individuals do take and recommend action in that capacity that is other than ministerial. In Lanny G. FPlty, Fsgl.i re march 11, 1986 Page 5 setting forth this previous ruling, the Commission did recognize the fact that certain judicial officers were exempt from the filing requirements. However, the Commission's determination also noted that the court decison's holding said individuals exempt from the Act were primarily based upon the fact that the judiciary had estahlished other codes of conduct that were applicahle to said officers which contained detailed provisions designed to prevent conflicts of interest and financial reporting requirements. See Kremer v. State Ethics Commission, 503 Pa. 358, 469 A.2d 593, (1983). In relation to one who serves as a master for divorce matters, there is no separate or distinct code of conduct which would he at this time applicable to said individuals. As such, the Commission has determined that said individuals would he puhlic employees within the purview of the State Ethics Act and thereby required to file the financial interests disclosure statements. See McRride, supra. Conclusion: Rased upon the foregoing, and haled upon the previous opinions of this Commission, you are to he considered a puhlic employee within the purview of the State Ethics Act and, therefore, required to file a Statement of Financial Interests in accordance with the Act. The Act requires such filings he made hy May 1 of every calendar year for which you serve in such position. Said filing is to he made with the local governing authority, in this case the county. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated hy the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the regiiestor 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 he 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 he scheduled and a formal Opinion from the Commission will he issued. Any such appeal must he made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12.