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HomeMy WebLinkAbout00-580 ShinkowskySTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL May 30, 2000 John F. Shinkowsky, Police Chief Elizabethville Police Department Municipal Building 14 South Market Street P.O. Box 369 00-580 Elizabethville, PA 17023 -0369 Re: Public Employee; FIS; Chief of Police. Dear Mr. Shinkowsky: This responds to your letter dated April 28, 2000, by which you requested advice from the State Ethics Commission. Issue: Whether, as the Police Chief of Elizabethville Borough, you would be considered a public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act") and the Regulations of the State Financial Ethics T ics Commission, and particularly, the requirements 9 Facts: You seek a determination as to whether, in your capacity as the Police Chief of Elizabethville Borough, you are a "public employee" subjec CtSo the Et i c1 Pc and the Regulations of the State Ethics Commission. See, Code §11 .1 . You specifically question whether you are required to file Statements of Financial Interests. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requester based upon the facts which the requester has submitted. In issuing the advisory based upon the facts which the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the ma fact a de fens s ns rse levant to the extent the has §§1107(10), r advisory disclosed all of the ter only affords fee to facts. The Ethics Act defines the term "public employee" as follows: § 1102. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Shinkowskv, 00 -580 May 30, 2000 Page 2 • or office. (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. 65 Pa.C.S. §1102. The Regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommen- dations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommendations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. Shir s 00-580 May 30, 2000 Page 3 (iv) Persons in the following positions are generally considered public employes: (A) Executive and special dir body, or assistants reporting directly to the agency head or governing (g) .Commonwealth bureau dancdtootfdi` heads of equivalent organization elements department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary- treasurers acting as and managers, police chiefs, chief clerks, chief purchasing in agents, grant Idind contract managers, administrative officers, n inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code §11.1 (Emphasis added). Pursuant to the State Ethics Commission considered to be "publ employees subject to the chiefs are among those generally Ethics Act. Status and regulatory definitions and criteria h to the position r held The applying the statutory th e psi ion, the r able osition the position, or the manner individual incumbent in which a particular individual a position, occupy on, tup variable occupying the position may carry out those functions. See Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); and Mummau v. Ranck, 531 Fed. Supp 402 (E.D. Pa. 1982). Furthermore, the Commonwealth Court of Pennsylvania has directed that hics Act coverage e construed be construed Phillips, supray and that exclusions under the Shinkowskv, 00 -580 May 30, 2000 Page 4 Finally -, in reviewing the Borough Code, specifically 53 P.S. §46121, the facts which you have submitted regarding the Elizabethville Police Department do not afford any basis for treating you any differently than all of the other borough police chiefs who are subject to the Ethics Act. Based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, the necessary conclusion is that you are a "public employee" subject to the Ethics Act, and that you are required to file Statements of Financial interests pursuant to the Ethics Act. Conclusion: In your capacity as the Police Chief of Elizabethville Borough, you are a "public employee" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the aforesaid position and for the year following your termination of such service. If you have not already done so, a Statement of Financial Interests must be filed within 30 days of this Advice. Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other criminal committed proceeding, e actsc provided d of in reliance truthfully all the e 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 b the the Commission Commission, ll be scheduled and a formal Opinion will be issue d y 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 t FAX transmission (717- 787 - 0806). Failure to file such an appeal Commission within thirty (30) days may result in the dismissal of the appeal. erely, Vincent J opko Chief Counsel