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HomeMy WebLinkAbout86-554 BearMs. Francis E. Rear, Treasurer West Hanover Township 7171 Allentown Blvd. Harrishurg, PA 17112 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 13, 1986 ADVICE OF COIINSEL Re: Township Treasurer, Public Employee Dear Ms. Rear: 86 - 554 This responds to your letter of April 14, 1986, in which you requested advice from the State Ethics Commission. Issue: You ask whether in your capacity as a Township Treasurer with West Hanover Township, hereinafter, the Township, you are to he considered a "public employee" or "public official" as those terms are defined in the Ethics Act, and therefore, whether you are required to file a Statement of Financial Interests pursuant to the Ethics Act. Facts: You have asserted in your letter of April 14, 1986, that hecause you are a honded employee of West Hanover Township and a single person solely accountable for all your responsibilities, that you should not be required to. file a Statement of Financial Interests in accordance with the State Ethics Act. You currently serve West Hanover Township as the township treasurer. You have requested that you he excused from filing the Statement of Financial Interests. Discussion: As set forth above, the question to he answered here is clear. Specifically, are you in your capacity as a township treasurer serving with the Township to he considered a "public employee" or " puhlic official." The State Ethics Act defines those terms as follows: Ms. Francis E. Bear, Treasurer May 13, 1986 Page 2 Section 2. Definitions. "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taki ng or recommendi ng official action of a nonmi ni steri al 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 i n teaching as di sti ngui shed from admi nistrative duties. 65 P.S. 402. The State Ethics Act also provides that the term public official i ncludes: Section 1.1. Definitions. Public officials - -- (i) Any elected or appointed offici al in the exeuctive, legislative, or judicial branch of the government of the Commonwealth or any of its political subdivisions. (ii) The term does not include the following: (A) Any member of an advisory board who has no authority to spend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or any political subdivision thereof. (B) Any appointed official who receives no compensation other than reimbursement for actual expenses. (C) Any political party officer. Ms. Francis E. Bear, Treasurer May 13, 1986 Page 3 (D) Judges and inspectors of elections and notary publics. (iii) Persons in the offices listed below are generally considered public officials: (A) All incumbents of offices filled by nomination of the governor and confirmation of the Senate., (B) All compensated heads of executive, legislative, and independent agencies, boards, and commi ssions. (C) All persons who report directly to heads of executive, legislative, and independent agencies, boards, and commissions except clerical personnel. (D) All compensated members of agencies, boards, and commissions appointed by the General Assembly or its officers. (E) School Superintendents and assistant superi ntendents. (F) All persons appointed to positions designated as officers by code, charter, or the like of the Commonwealth or its political subdivisions. 51 Pa. Code 1.1. The regulations of the State Ethics Commission similarly define the term public employee as above and also set forth that the term includes any i ndi vi dual : (B) who meets the criteria of either subclause (I) or (II): (I) The individual is: ( -a -) a person who normally performs his• responsibility in the field without on -site supervision; Ms. Francis E. Bear, Treasurer May 13, 1986 Page 4 ( -b -) the immediate supervisor of a person who normally performs his responsibility 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; ( -2 -) has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions; ( -3 -) prepares or supervises the preparation of final recommendations; or ( -4 -) makes the final technical recommendations; and ( -b -) 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 public employees. Ms. Francis E. Bear, Treasurer May 13, 1986 Page 5 (A) Executive and speci al di rectors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs, or heads of equivalent organization elements and other governmental body department heads. b (C) Staff attorneys engaged in representing the department, agency, or other governmental bodies before the public. (D) Solicitors, engineers, managers, and secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, housing and building inspectors, sewer enforcement officers, and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs, and deputies for the minor judi ci ary. (F) School business managers and principals. (iv) Persons in the positions listed below are generally not considered public employes. (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, equipment operators, and recreation di rectors. (B) Law clerks, court criers, court reporters, probation officers, security guards, and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code 1.1. We must review the question you present under these provisions of the statute and the regulations of the Commission in light of your duties and obligations as described in the Second Class Township Code provisions regarding the appointed township treasurer under which you operate. Our Ms. Francis E. Rear, Treasurer May 13, 1986 Page 6 inquiry necessarily focuses on the job itself and not on the individual incumbent in the position, the variahle functions of the position, or the manner in which a particular individual occupying a position may carry out those functions. See McClure, 83 -001; Phillips, 82 -008, affirmed on appeal, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.O. Pa. 1982). Also, in reviewing your question, the Commonwealth Court in its ruling in Phillips, supra, at page 661, directs us to construe coverage of the Ethics Act broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Act should be narrowly construed. Rased upon this directive and reviewing the definition of "puhlic employee" or "puhlic official" in the statute and the regulations and opinions of this Commission, in light of your joh functions and the information availahle to us, we are led to the conclusion that while you serve in this capacity, you are a "puhlic employee" or "puhlic official" subject to the financial reporting and disclosure requirements of the State Ethics Act. Further detail on our analysis follows. It is clear that in your capacity as a Township Treasurer, you have the ability to recommend official action with respect to subparagraph 4 and 5 within the definition of "puhlic employee" as set forth in the Ethics Act, 65 P.S. 402. Specifically, the Township Code provides that the township treasurer shall perform the following duties: The township treasurer shall receive all moneys due the township and deposit the same promptly upon receipt thereof in a hank, Nanking institution, or trust company in the name of the township. He shall keep distinct and accurate accounts of all sums received from taxes and other sources, which account shall he open to the inspection of the supervisors and taxpayers of the township. He shall pay out all moneys received hy him only on orders drawn hy the supervisors of the township. He shall annually state his accounts, and lay the same, together with the vouchers, before the township auditors for settlement. 53 P.S. 65532 Additionally, because a Township Supervisor is an appointed official within the Township, you mzy also he considered a puhlic official within the definition of the State Ethics Act. In any event these activities fall within the definition of puhlic employee as contained in the regulations of the Commission, 51 Pa. Code 1.1 et seq. Under these circumstances and given your duties and responsihilities as outlined ahove, we must conclude that you are a "puhlic employee" as that term is defined in the State Ethics Act. Ms. Francis E. Bear, Treasurer May 13, 1986 Page 7 Conclusion: Based upon the above discussion, we conclude that you are to be considered a "public employee" or "public official" in your capacity as a Township Treasurer with West Hanover Township. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the position outlined above and for the year following your termination of this service. If you have not already done so, a Statement of Finanical Interests must be filed within 15 days of this Advice. This Statement of Financial Interests would report information of the prior calendar year. Please file the original of such a Statement with this Commission to insure compliance with this Advice, provide the yellow copy to your Personnel Office and retain the green copy for your records. Pursuant to Section 7(9) (i i ), 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. Si nc n J. Co' in eneral 'ounsel