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HomeMy WebLinkAbout87-612 ScacchittiEdmund J. Scacchitti, Esquire 402 United Penn Building Spruce Street at Wyoming Avenue Scranton, PA 18503 -1814 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 September 4, 1987 ADVICE OF COUNSEL Re: Public Official, Solid Waste Authority Dear Mr. Scacchitti: This responds to your letter of August 27, 1987, in which you requested advice from the State Ethics Commission. 87 -612 Issue: You ask whether the members of the Susquehanna - Wyoming Counties Solid Waste Authority are public officials subject to the provisions of the State Ethics Act. Facts: The Susquehanna - Wyoming Counties Solid Waste Authority, hereinafter Authority, was formed pursuant to the Municipal Authorities Act of May 2, 1945, P.L. 382, as amended, 53 P.S. §301 et. seq. The offices of the Authority are located at the Wyoming County Courthouse, Tunkhannock, Pennsylvania. You ask whether the members of the Authority are subject to the Ethics Act of October 4, 1978, P.L. 883 No. 170, 65 P.S. §401 et. seq. Discussion: Initially, it is noted that under the Ethics Act, this Commission's jurisdiction is limited to rulings under the Ethics Act. Thus, in this Advice, the propriety of or answer to any questions related to of any code, statute (federal or state), regulation or ordinance other than the Ethics Act cannot be addressed. In the definitional section of the Ethics Act, Section 402, "public official" is defined as follows: Section 2. Definitions. "Public official." Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it Edmund J. Scacchitti, Esquire September 4, 1987 Page 2 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. However, in Snider v. Thornburgh, 469 Pa. 159, 436 A.2d 593 (1981), the Pennsylvania Supreme Court held the definitional phrase "public official" unconstitutional insofar as it operated to exempt appointed /non- compensated officials from Ethics Act coverage. Thus, the Court's decision had the effect of removing the appointed non - compensated exclusion from the Ethics Act. The Regulations of this Commission define "public official ", in part, as follows: Section 1.1. Definitions. _ Public officials - -- An elected or appointed official in the executive, legislative or judicial branch of the government of the Commonwealth or its political subdivisions. The terms does not include a 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 a political subdivision thereof. (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimus effect on the interest of a person. Edmund J. Scacchitti, Esquire September 4, 1987 Page 3 (B) The body will be deemed to have the authority to otherwise exercise the power of the State or of a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations, or ordinances. (VII) The body has the power of eminent domain, or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. Also, in reviewing your question, it is noted that the Commonwealth Court in Phillips v. State Ethics Commission, 79 Pa. Cmwlth. 491 (1984), directs that coverage of the Ethics Act should be broadly, rather than narrowly, construed and conversely, directs that exclusions from the Ethics Act should be narrowly construed. Based upon this directive and a review of the definition of "public official" in the statute and the regulations and opinions of this Commission, the members of the Authority are public officials subject to the provisions of the Ethics Act. Edmund J. Scacchitti, Esquire September 4, 1987 Page 4 In Section 4(b) of the Municipal Authorities Act, supra, it is noted that municipal authorities generally have the power, inter all a, to sue, acquire and hold property, operate projects, charge and collet rates, borrow money and issue bonds, contract, exercise the power of eminent domain, charge construction costs and fees and perform all other acts necessary for the promotion of the business of the Authority. These governmental activities fall within the definition of public official as contained in the regulations of the Commission 51 Pa. Code §1.1. Under these circumstances, the members of the Authority are "public officials" as that term is defined in the State Ethics Act. Conclusion: Based upon the above, the members of the Authority are to be considered "public officials." Accordingly, it must be pointed out that they are required to file a Statement of Financial Interests for each year in which they hold their position and for the year following their termination of service. If they 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 the Authority and retain the green copy for the members' records. 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 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. Sincerely, Vincent J. Dopko General Counsel