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HomeMy WebLinkAbout86-579 LaubeMr. F. H. Lauhe 328 Fifth Street Freeport, PA 16229 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 July 1, 1986 ADVICE OF COUNSEL 86 - 579 Re: Statement of Financial Interests, Members, Municipal Parking Authority Dear Mr. Laube: This responds to your letter of May 29, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether members of a municipal parking authority are required to file Statements of Financial Interests within the purview of the State Ethics Act. Facts: You have requested the advice of the State Ethics Commission as a member of the Freeport Parking Authority. The parking authority consists of five memhers who operate the authority on a volunteer basis. You indicate that the group is advisory in nature and generally has been empowered to help overcome a parking problem in your community. The members of the board are not compensated. The memhers of the hoard are appointed by the Freeport Rorough Council. You advise that the authority is not involved in acquiring, selling, or renting property. The parking authority was created in 1980 pursuant to a Parking Authority Law. 53 P.S. .5343. Discussion: As you are probably aware, the State Ethics Commission has recently determined that appointed /non- compensated memhers of municipal authorities are puhlic officials within the purview of the State Ethics Act and, thereby, required to file Statements of Financial Interests in accordance with the Act. Dice, 85 -021. Generally, the Commission's determination in that matter was based upon the definition of puhlic official which provides as follows: Mr. F. H. Laube July 1, 1986 Page 2 Section 2. Definitions. "Public official ." Any elected or appointed official i n the Executive, Legislative or Judicial 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. As originally promulgated, the above definition exempted from Ethics Act coverage members of municipal authorities who were appointed and not compensated. The Supreme Court of Pennsylvania, however, has subsequently ruled that the above definition is unconstitutional insofar as it exempted appointed /non - compensated officials. The result reached by the Supreme Court, in its decision, was to excise that exemption from the statutory language of the State Ethics Act. Therefore, the Commission's determination in the Dice opinion was based upon the fact that the definition of public official must be read without the above exemption. See, Snider v. Thornburgh, 469 Pa. 159, 436 A.2d 593, (1981). The Commission's opinion in Dice, however, was strictly limited to authorities created under the Municipal Authorities Act of 1945. 53 P.S. §301 et. seq. In the instant situation, the authority on which you serve was not created under that particular provision of law. The authority on which you serve was created under the Parking Authority Act of 1947. 53 P.S. §341. The Commission, to -date, has not expanded the filing requirement to other boards, commissions and authorities whose members are appointed and non - compensated. The Commission, however, in the Dice opinion did indicate that the Commission would, in the future, promulgate rules and regulations to implement the Supreme Court's Snider decision and to act as guidelines regarding what other boards, commissions and authorites may be covered by the State Ethics Act. Pending the promulgation of those regulations, however, the Commission has not extended the filing requirement to other boards and commissions that may now be covered. As such, at the current time, members of the Freeport Parking Authority are not required to file Statements of Financial Interests in accordance with the Act. You are advised that the Commission is currently in the process of publishing the proposed rules and regulations in the Pennsylvania Bulletin. These proposed regulations may effect your board and may result in the requirement that the members of your authority file Statements of Financial Interests. As such, you should be aware of the Mr. F. H. Laube July 1, 1986 Page 3 promulgation of such rules and regulations as the proposed notice in the Pennsylvania Bulletin will provide for a thirty day period for public comment. You may wish to offer your comment to the proposed rules and regulations that appear in the Pennsylvania Bulletin. These proposals will appear prior to the final adoption of the rules and regulations by the Commission. Your borough solicitor should be able to keep you advised as to these developments. Conclusion: Members of a borough parking authority, created under the Parking Authority Law of 1947, are not at the current time required to file Statements of Financial Interests in accordance with the State Ethics Act. Rules and regulations that may change this particular result will be published in the near future and you should be kept advise as to future developments. 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 truthful ly 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. JJC /sfd Si ncerely, ontiYro General Counsel