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HomeMy WebLinkAbout83-011 McBrideMr. John D. McBride 722 Turnpike Street Beaver, PA 15009 -. STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 August 19, 1983 OPINION OF THE COMMISSION RE: Master, Juvenile Matters; Financial Reporting Dear Mr. McBride: I. Issue: 83 -011 You ask whether you, as a Beaver County Master for Juvenile Matters, are subject to the filing provisions of the Ethics Act. II. Factual Basis for Determination: You are employed by the County of Beaver as a Master for Juvenile Matters, pursuant to the provisions of the Juvenile Act, 42 Pa. C.S.A. 6305. To obain your position as Master, you had to be appointed by the local Court of Common Pleas of Beaver County, and that appointment had to be approved by the Supreme Court of Pennsylvania. Any action that you take as a Master, pursuant to the Juvenile Act, is subject to the final approval of the Court of Common Pleas, and ultimately, the Supreme Court. Your basic duties include hearing juvenile cases. You have the authority, bestowed upon you by the Court of Common Pleas, to determine the facts, adjudicate the law, 5nd impose sentences. Attorneys in a case may choose to appear before a Master or not, and may or may not accept his ruling, as final. Whether a party appeals a Master's recommendation or not, that recommendation must ultimately be approved by the Court of Common Pleas, either through the appeals process, or an established "approval process." In this regard, you state that you believe that you are serving in a purely ministerial capacity because you cannot dictate expenditure of public funds without Court approval. Alternatively, you state that you should be exempt from the Act's filing requirements by virtue of the exemption currently mandated by court decisions as to members of the judiciary. However, you are not aware of any rules generally governing the conduct of Masters for Juvenile Matters by the Supreme Court nor can you state that the Rules of Judicial Conduct are applicable to such Masters. For these reasons, you have requested a ruling from the State Ethics Commission. Mr. John D. IcBride August 19, :;33 Page 2 III. App1.ble Law: The -_+ to be applied to this question is as follows: _pion 2. Definitions =;blic employee." Any individual employed by the 3anonwealth or a political subdivision who is responsible ;cr taking or recommending official action of a r._nministerial nature with regard to: IV. Disc =:ion: contracting or procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting, licensing, regulating or auditing any person; or any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. "=ublic employee" shall not include individuals who are rnloyed by the State or any political subdivision thereof teaching as distinguished from administrative duties. tE P.S. 402. '=fate consultant." A person who, as an independent :ntractor, performs professional, scientific, technical advisory service for a State agency, and who receives a honorarium or similar compensation for such services. 1 "State consultant" is not an executive -level employee. tE P.S. 402. 'Ministerial action." An action that a person performs in __ prescribed manner in obedience to the mandate of legal thority, without regard to or the exercise of, the :=rson's own judgment as to the desirability of the action :eing taken. 65 P.S. 402. the Ethics Commission notes that, as a statutory entity, its jurisdic : - :n and its power are strictly limited to the authority granted it in 65 P.S. et seq. Thus, it has no authority to interpret and /or enforce the provisior_E other codes, for example, the Juvenile Act, and this Opinion is strictly T to your conduct under the Ethics Act. Mr. John D. McBride August 19, 1983 Page 3 From your description of your duties and attendant procedures, the Commission is of the opinion that you are not exempt from the filing requirements of the Ethics Act because you do take or recommend action in your capacity that is other than "ministerial." You are not exempt because you lack authority to expend public funds or because you serve as a member of the judiciary. (See Kremer v. State Ethics Commission, 56 Pa. Cmwlth. 160, 424 A.2d 968 (1981)), or because of language in the Supreme Court's decision in Ballou v. State Ethics Commission, Pa. , 436 A.2d 186 (1981) regarding "state consultants." With regard to your argument that you serve in a purely ministerial capacity, we disagree with the characterization you place upon your duties because you have authority to determine facts, adjudicate law, and impose sentences, subject to approval by the Court of Common Pleas. Your role as independent decision -maker and /or recommendary authority, as well as the authority associated with the expenditure of public funds through imposition of sentences, removes your duties from the "purely ministerial" and places them within the realm of the discretionary. Your power to take or recommend official action regarding placement of juveniles, imposing sentences, etc. is non - ministerial, especially with respect to Paragraph (5) of the definition of public employee. With regard to your being exempt from filing by virtue of the exempt status of certain members of the judiciary, we simply note that we are unwilling to automatically extend such an exemption to you. We are certainly cognizant of the Court ruling in Kremer, supra. We note that the Kremer ruling is currently on appeal and pending g g Y ppeal to the Supreme pendin a ru — on the question of whether the legislature has the ability to promulgate the Ethics Act and apply it to judges themselves, we will not extend this exemption to conclude that as a Master of Juvenile Matters you are subject only to regulation by the Supreme Court and, therefore, not subject to the filing requirements of the Ethics Act. We are especially reluctant to use this ruling as a basis for any such exemption given the fact that in your post you are not currently subject to any regulations or Code of Judicial Conduct as are applicable to judges in general. These facts as well as the fact that you exercise substantial, non - ministerial responsibility within the judicial system, lead us to conclude that you are not exempt from the Ethics Act and are to be considered a "public employee" subject to the Ethics Act. V. Conclusion: In your position as a Master for Juvenile Matters for Beaver County, you are to be considered a "public employee" subject to the financial reporting and disclosure requirements of the Ethics Act and the Ethics Act in general. Mr. John D. McBride August 19, 1983 Page 4 Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. CW /rdp By the Commission,