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HomeMy WebLinkAbout86-557 TuroRon Turo, Esquire 200 North Hanover Street Carlisle, PA 17013 Dear Mr. Toro: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 15, 1986 ADVICE OF COUNSEL 86 -557 Re: Public Employee /Official, Emergency Management Coordinator, Monaghan Township This responds to your letter to the State Ethics Commission of April 23, 1986, in which you requested advice from the State Ethics Commission. Issue: You ask whether, because of your service as the Emergency Management Coordinator, with Monaghan Township, you are to he considered a "puhlic employee" or "puhlic official" under the State Ethics Act and, therefore, required to comply with the financial reporting and disclosure provisions of the State Ethics Act. Facts: You serve as Emergency Management Coordinator for Monaghan Township, hereinafter, the Township. As such, you are primarily responsible for preparing and formulating a plan of evacuation in the event of a major emergency in the Township. In addition to the foregoing, you work closely with the volunteer fire department in order to coordinate any evacuation plan that is in affect. You advise that you do not have any ability to purchase equipement or enter into contracts. You also perform no other administrative duties. You have also advised that you are completely subject to the instructions of the township hoard of supervisors. You do have the authority to recommend that the township hoard of supervisors purchase certain items in the event that such would he necessary to implement the emergency plan. However, your recommendations in this respect would only he for the purchase of general items as opposed to specific purchases from certain individuals or companies. You were appointed to the position of Emergency Management Coordinator pursuant to the provisions of the Emergency Management Services Code, 35 Pa. C.S.A. &7502(h). Pursuant to the provisions of the Ron Turo, Esquire May 15, 1986 Page 2 aforementioned code, each political sub - division is authorized to establish a local emergency management organization. That organization generally has the powers and duties of preparing and maintaining a disaster emergency management plan. You serve as the county coordinator for the local organization in Monaghan Township. You question the requirement that you comply with the financial reporting and disclosure provisions of the State Ethics Act. You do not believe your duties and responsibilities are such that you fall within the definition of "public employee" or " public official" in the Ethics Act. Accordingly, we have been asked to review the question of whether you are subject to the financial reporting and disclosure requirements of the State Ethics Act. We note that, for the sake of this response, we are relying primarily on your job description as set forth in your letter of request and as generally set forth in the Emergency Management Code. Discussion: The primary question to be answered is whether or not you are to be considered a "public employee" as that term is defined in the State Ethics Act. The Act provides as follows: Section 2. Definitions. "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taki ng 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. Ron Turo, Esquire May 15, 1986 Page 3 The other question is whether you should be considered a "public official." That term is defined in the Ethics Act as follows: Section 2. Definitions. "Public offici al ." Any elected or appointed offici al i n the Executive, Legislative or Judi ci al 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 the power of the State or any political subdivision thereof. "Public official" shall not include any appointed official who receives no compensation other than reimbursement for actual expenses. 65 P.S. 402. Based upon the definition of "public employee" and in light of your job description as well as the language in your request for advice, and the explanation of your job as set forth therein, we conclude that you are not to be considered a "public employee" as that term is defined in the State Ethics Act. This conclusion is based upon our objective review of this information from which it appears that you have not been responsible for taking or recommending official action of a non - ministerial nature with regard to any of the five categories set forth in the definition listed above for the term "public employee ". Specifically, it is noted that pursuant to your letter of April 23, 1986, you have indicated that you have no power to make any purchases or expend any public funds. In the event that this situation should change or in the event that you are called upon to make affirmative recommendations for specific purchases of items and recommendations as to who shall supply those items, this situation may be altered. In addition to the foregoing, we note that while you are an appointed official in a political sub - division, it appears as though from the description of your duties as set forth in your letter of request as well as in the Emergency Management Services Code, you do not' have the power to expend public funds and you generally do not have the power to exercise the authority of the Commonwealth. As such, you will not be a public official within the above definition as set forth in the State Ethics Act. Thus, because you do not fall within the classification of the term "public employee ", you would not be subject to the financial reporting and disclosure requi rements of the State Ethics Act. Accordi ngly, you would not be required to execute the Statement of Financial Interests for the years in which you served in your position as an Emergency Management Coordinator with the Monaghan Township. Ron Turo, Esqui re May 15, 1986 Page 4 Reviewing your position and the items referred to above, we also conclude that you are not to be considered a "public official" as set forth above. Conclusion: In your position as Emergency Management Coordinator with the Monaghan Township, you were not to be considered public employee or public official as defined in the State Ethics Act. Accordingly, you would not be subject to the reporting and disclosure requirements of the State Ethics Act and you need not execute a Statement of Financial Interests. 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 w i l l 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. S' rely, John J. .ntino Gener Counsel