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HomeMy WebLinkAbout97-580 SciottoCharles T. Sciotto Deputy Secretary for Employe Relations Office of Administration 517 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 June 12, 1997 97 -580 Re: Member, County Probation and Parole Officers' Firearm Education and Training Commission; Public Official; FIS Dear Mr. Sciotto: This responds to your inquiry of May 12, 1997, by which you requested advice from the State Ethics Commission. Issue: Whether Members of the County Probation and Parole Officers' Firearm Education and Training Commission are to be considered "public officials" as that term is defined in the Public Official and Employee Ethics Law, and therefore, whether they are required to file Statements of Financial Interests. Facts: You ask whether the activities and functions of Members of the County Probation and Parole Officers' Firearm Education and Training Commission (CPPOFETC) are to be considered "public officials" subject to the Ethics Law and if so, for which calendar years they must file Statements of Financial Interests. You have submitted a copy of Act 1994 -158 which established that Commission. Discussion: It is initially noted that the term "public official" is defined in the Ethics Law as follows: 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 otherwise Sciotto, 97 -580 June 12, 1997 Page 2 exercise the power of the State or any political subdivision thereof. 65 P.S. §402. The Regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional 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. (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. Sciotto, 97 -580 June 12, 1997 Page 3 51 Pa. Code §11.1. (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). In order to determine whether Members of the CPPOFETC are public officials required to file Statements of Financial Interests pursuant to the Ethics Law, it is necessary to analyze their duties, functions and responsibilities. Philips v. State Ethics Commission, 79 Pa. Commw. 491, 470 A. 2d 659 (1984). The inquiry necessarily focuses on the position 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 the position may carry out those functions. See Philips v. State Ethics Commission, supra; Mummau v. Ranck. 531 Fed. Supp. 402 (E.D. Pa. 1982). Also, the Commonwealth Court in its ruling in Phillips, supra, at page 661, has directed that coverage under the Ethics Act be construed broadly, rather than narrowly, and conversely, that exclusions from the Ethics Act be narrowly construed. Pursuant to Act 158 of 1994, Members of the CPPOFETC are appointed by the Governor. Their powers and duties include developing, establishing, and administering the minimum courses of study and training and competency standards for firearm training for Probation and Parole Officers. CPPOFETC enforces the requirement that County Probation and Parole Officers obtain the requisite training and it certifies those Officers who satisfactorily comply with the requirements. The CPPOFETC can revoke an Officer's certification for failing to comply with the requirements that it establishes. It inspects and approves or revokes approval for schools that seek to provide such education and training. Furthermore, the CPPOFETC establishes minimum qualifications for instructors, approves or revokes approval of such instructors, and develops the requirements for their continued certification. Sciotto, 97 -580 June 12, 1997 Page 4 Activities of the CPPOFETC are funded in part by the County Probation and Parole Officers' Firearm Education and Training Fund ( "the Fund ") which is established as a restricted receipts account within the General Fund. The Fund includes monies that are collected as an additional cost imposed upon persons accepting Accelerated Rehabilitative Disposition or pleading guilty or nolo contendere or being convicted of a felony or misdemeanor. The Act specifically provides, "Disbursement and allocation of fund moneys shall be at the discretion of the commission." Act 158 of 1994, §8(b). Additional monies are available to the Commission from the County Offender Supervision Fund or any other county fund. Act 158 of 1994, §8(c). Based upon the above, the Members of the CPPOFETC are clearly within the definition of "public official" as contained in the Ethics Law and regulations of the Commission. 51 Pa. Code 11.1. The Members are therefore subject to the provisions of the Ethics Law and specifically the financial reporting and disclosure requirements of the Ethics Law. Accordingly, they must file Statements of Financial Interests for each year in which they hold the position outlined above and for the year following termination of this service. If not already filed, such Statements of Financial Interests must-be filed within 30 days of this Advice. Conclusion: Members of the County Probation and Parole Officers' Firearm Education and Training Commission are to be considered "public officials" subject to the Ethics Law. Accordingly, they must file Statements of Financial Interests for each year in which they hold the position outlined above and for the year following termination of this service. If not already filed, such Statements of Financial Interests must be filed within 30 days of this Advice. 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. 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 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 1. 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, . o incent J. Chief Counsel