HomeMy WebLinkAbout87-575 MascaraSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
May 20, 1987
ADVICE OF COUNSEL
Mr. Frank R. Mascara
Washington County
Courthouse Square, Room 702
Washington, PA 15301
Re: Statement of Financial Interest, Capital Gain
Dear Mr. Mascara:
87 -575
This responds to your letter of May 7, 1987, wherein you
advice of the State Ethics Commission.
Issue: Whether capital gains resulting from the sale of real
reported on the Statement of Financial Interest.
Facts: You have requested an opinion from the State Ethics Commission
regarding whether capital gains are reportable under the income reporting
requirements of the State Ethics Act. Specifically, you have indicated that
during the middle of the 1960's you purchased several lots. You are in the
process of selling this property and will realize a long -term capital gain as
a result thereof. You have requested the advice of the Commission regarding
whether income received from this source would be reportable under the State
Ethics Act.
requested the
estate must be
Discussion: Generally the State Ethics Act provides that all public employees
must file a statement of financial interest in accordance with the provisions
of the State Ethics Act by May 1 of every year in which they are in office and
for the year following the termination of their public service. 65 P.S. §404.
Additionally, this requirement is equally applicable to public officials.
Kramer v. State Ethics Commission, 56 Pa. Commw. Ct. 160, 424 A.2d 968,
(1981); Carter, 79 -066. The regulations of the State Ethics Commission
further require
§4.4.Incumbent and former public officials.
(a) Incumbent officials of the Commonwealth's
executive, legislative, and judicial branches and other
statewide offices who are not candidates shall file their
Statement of Financial Interests with the Commission and a
copy with the agency in which they hold office by May 1 of
each year in which they hold office. 51 Pa. Code
4.4(a).
Mr. Frank R. Mascara
May 20, 1987
Page 2
(b) Incumbent public officials in governmental
bodies other than those specified in subsection (a) who
are not candidates shall file their Statement of Financial
Interests only with their governmental body. 51 Pa. Code
4.4(b).
As an elected county commissioner, you are clearly a public official within
the purview of the State Ethics Act and therefore are required to file a
statement of financial interests in accordance with the provisions thereof.
The State Ethics Act requires that the statement of financial interest
filed in accordance with the provisions of law must include
Section 5. Statement of financial interests.
(b) The statement shall include the following information
for the prior calendar year with regard to the person
required to file the statement and the members of his
immediate family:
(5) The name and address of any person who is the
direct or indirect source of i ncome totalling in
the aggregate of $500 or more. However, this
provision shall not be construed to require the
divulgence of confidential information protected
by statute or existing professional codes of
ethics.
The Act defines income as follows:
Section 2. Definitions.
"Income." Any money or thing of value received, or to be
received as a claim on future services, whether in the
form of a fee, salary, expense, allowance, forbearance,
forgiveness, interest, dividend, royalty, rent, capital
gain or any other form of recompense or any combination
thereof. 65 P.S. 402.
The regulations of the Commission further define income as follows:
Section 1.1. Definitions.
Income - -- As defined in the act, but the term
refers to gross income; prize winnings constitute income,
not gifts; the term includes tax exempt income. The term
does not include social security; welfare; general
Mr. Frank R. Mascara
May 20, 1987
Page 3
assistance; domiciliary care programs; retirement,
pension, and annuity payments funded totally by
contributions of the public official /employe; unemployment
compensation, including employer and union funded
programs; worker's compensation; or miscellaneous,
incidental income of minor dependent children from
newspaper routes, babysitting, lawn- mowing and the like.
51 Pa. Code 1.1.
Based upon the foregoing, it i
provides for the reporting of
including capital gain income.
person, entity, individual or
a source of income if such is
s clear that' the State Ethics Act specifically
all income received by a public official
As such, you would be required to report the
governmental body to whom said lots are sold as
in excess of $500.
Conclusion: The State Ethics Act requires public officials to file statements
of financial interest by May 1 of every year and for the year following their
termination of service. Such reporting requirement would include disclosure
of all sources of income in excess of $500 including income in the form of
capital gains.
Pursuant to Section 7(9)(i1), 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.
ino
Actin eneral Counsel