HomeMy WebLinkAbout96-512 BerkobenRobert Berkoben
Personnel Officer
Office of Administration
222 Finance Building
Harrisburg, PA 17108
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
February 8, 1996
Section 2943(b) of Act 1994 -44 provides that:
96 -512
Re: Constables' Education and Training Board; Public Official;
FIS.
Dear Mr. Berkoben:
This responds to your letter of January 19, 1995, in which you
requested advice from the State Ethics Commission.
Issue: You ask whether the members of the Constables' Education
and Training Board, hereinafter Board, are to be considered "public
official[s]" as that term is defined in the Public Official and
Employee Ethics Law so as to be required to file Statements of
Financial Interests.
Facts: You question whether the •activities and functions of
members of the Board fall within the purview of the definition of
"public official" as that phrase is defined in the State Ethics Law
and the regulations of this Commission. You have submitted a copy
of Act 1994 -44 which established the Board.
The Board shall be composed of the Pennsylvania
State Police Commissioner or his designee and six other
members appointed by the Governor with the consent of a
majority of the members of the Senate:
(1) Three persons who shall be constables.
(2) One person who shall be a district justice.
(3) One person who shall be a court administrator.
(4) One person who shall be a county commissioner.
Act 1994 -44 further provides that members shall serve for
three year terms and may be appointed for more than on additional
$erkoben, 96 -512
February 8, 1996
Page 2
consecutive term. The members serve without compensation but are
reimbursed for expenses incurred in the performance of their
duties.
Section 2944 of Act 1994 -44 sets forth the duties of the
Board:
The board, with the review and approval of the
commission, shall:
(1) Establish, implement and administer the
Constables' Education and Training Program according to
the minimum requirements set forth in this subchapter.
(2) Establish, implement and administer
requirements for the minimum courses of study and
training for constables and deputy constables.
(3) Establish, implement and administer
requirements for courses of study and in- service training
for constables and deputy constables.
(4) Establish, implement and administer
requirements for a continuing education program for
constables and deputy constables concerning subjects the
board may deem necessary and appropriate for the
continued education and training of constables and deputy
constables.
(5) Approve or revoke the approval of any school
which may be utilized for the educational and training
requirements of this subchapter.
(6) Establish the minimum qualifications for
instructors and certify instructors.
(7) Consult, cooperate and contract with
universities, colleges, law schools, community colleges
and institutes for the development of basic and
continuing education courses for constables and deputy
constables.
(8) Promote the most efficient and economical
program for constable and deputy constable training by
utilizing existing facilities, programs and qualified
State and local personnel.
(9) Certify constables and deputy constables who
have satisfactorily completed the basic and continuing
education and training requirements of this subchapter
and issue appropriate certificates to them.
Berkoben, 96 -512
February 8, 1996
Page 3
(10) Make rules and regulations and perform other
duties as may be reasonably necessary or appropriate to
administer the education and training program for
constables and deputy constables.
(11) In consultation with the Insurance
Commissioner, monitor the price and availability of the
liability insurance required by section 2942(b) (relating
to conduct and insurance) and, if deemed necessary by the
board, provide information and coordination to assure the
availability and competitive pricing of such insurance.
(12) Make an annual report to the Governor and to
the General Assembly concerning:
(i) The administration of the Constables'
Education and Training Program.
(ii) The activities of the board.
(iii)The costs of the program.
(iv) Proposed changes, if any, in this
subchapter.
Discussion: Since you question whether members of the
Constables' Education and Training Board are public officials
required to file the Statement of Financial Interests under the
Ethics Law, it is necessary to analyze the duties, functions and
responsibilities of the Board in order to determine whether they
are covered under the definition of public official and the
Regulations of the Commission. Philips v. State Ethics Commission,
79 Pa. Commw. 491, 470 A. 2d 659 (1984).
The powers or duties of the Board are set forth in Act 1994-
44, a copy of which you submitted and is incorporated herein by
reference.
The question to be answered is whether those duties are
encompassed within the term "public official" as defined in the
Ethics Law and Regulations of the Commission.
Section 2. Definitions
"Public Official." Any person elected by
the public or elected or appointed by a
governmental body, or an appointed official in
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
Berkoben, 96 -512
February 8, 1996
Page 4
65 P.S. §402.
otherwise exercise the power of the State or
any political subdivision thereof.
The regulations of the State Ethics Commission similarly
define the term "public official" as above with the additional
following criteria:
(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
minimis economic impact on the interest of a
person.
(B) The body will be deemed to have the
authority to otherwise exercise the power of the
Commonwealth or 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.
Berkoben, 96 -512
February 8, 1996
Page 5
51 Pa. Code §11.1.
(VI) The body may adopt, amend and repeal r-
esolutions, 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.
(ii) The term does not include judges and
inspectors of elections, notary publics and
political party officers.
(iii) The term generally includes persons in
the following offices:
(A) Incumbents of offices filled by
nomination of the Governor and confirmation of the
Senate.
(B) Heads of executive, legislative and
independent agencies, boards and commissions.
(C) Members of agencies, boards and
commissions appointed by the General Assembly or
its officers.
(D) Persons appointed to positions designated
as officers by the Commonwealth or its political
subdivisions.
(E) Members of municipal, industrial
development, housing, parking and similar
authorities.
(F) Members of zoning hearing boards and
similar quasi- judicial bodies.
(G) Members of the public bodies meeting the
criteria in paragraph (I)(A).
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 responsibilities as described above. Our inquiry
necessarily focuses on the job itself and not on the individual
incumbent in the position, the variable functions of the position,
or the manner in which a particular individual occupying a position
Berkoben, 96 -512
February 8, 1996
Page 6
may carry out those functions. See Philips v. State Ethics
omission, supra; Mummau v. Ranck. 531 Fed. Supp. 402 (E.D. 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. Based upon this directive and reviewing the
definition of "public official" in the statute and the regulations
and opinions of this Commission, in light of the duties and
responsibilities of the Board, we must conclude that they are
"public officials" subject to the financial reporting and
disclosure requirements of the State Ethics Act.
In the capacity of a member of the Board, Board members have
the power to establish, implement and administer the Education and
Training Program, the minimum course requirements, continuing
education, the approval or revocation of any training /educational
school, the qualifications of instructors, certification of
constables or deputy constables, regulations and various other
enumerated activities. These activities fall within the definition
of public official as contained in the regulations of the
Commission. 51 Pa. Code 11.1. Under these circumstances and given
the duties and responsibilities as outlined above, we must conclude
that the Board members are "public officials."
Conclusion: Members of the Constables' Education and Training
Board are to be considered "public officials ". Accordingly, they
must file a Statement of Financial Interests for each year in which
they hold the position outlined above and for the year following
termination of this service.
If you have not already done so, a Statement of Financial
Interests must be filed within 30 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, file
the yellow copy with your agency or governmental body or governing
authority. Keep a photocopy for your records.
Pursuant to Section 7(11), 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.
such.
This letter is a public record and will be made available as
Aerkobeu, 96 -512
February 8, 1996
Page 7
Finally, if you disagree with this Advice or if you
have any reason to challenge same, you may appeal the
Advice to the full Commission. A personal appearance
before the Commission will be scheduled and a formal
Opinion will be issued by the Commission.
Any such appeal must be in writing and must be
actually received at the Commission within thirty (30)
days of the date of this Advice pursuant to 51 Pa. Code
§13.2(h). The appeal may be received at the Commission
by hand delivery, United States mail, delivery service,
or by FAX transmission (717- 787 - 0806). Failure to file
such an appeal at the Commission within thirty (30) days
may result in the dismissal of the appeal.
cerely,
incent . Dopko
Chief Counsel