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HomeMy WebLinkAbout96-002 WeinertRobert A. Weinert, Esquire Commonwealth Building Suite 205 512 Hamilton Street PO Box 5 Allentown, PA 18105 -0005 I. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn DATE DECIDED: DATE MAILED: Re: Deputy Coroners; Public Official; FIS Dear Mr. Weinert: 5/31/96 6/12/96 96 -002 This Opinion is issued in response to your advisory request letter dated February 13, 1996. Whether under the Public Official and Employee Ethics Law Deputy Coroners are "public officials" required to file Statements of Financial Interests. II. FACTUAL BASIS FOR DETERMINATION: As the Solicitor for the Pennsylvania Coroner's Association, you contend that Deputy Coroners should not be considered "public officials" subject to the Ethics Law and therefore should not be required to file Statements of Financial Interests (FIS's). The County Code allows the Coroner to appoint a Chief Deputy and one or more deputies, which deputies have the same powers as the Coroner. The deputies act in the Coroner's place and stead, as he may deem proper and necessary. You state that in most of the counties in Pennsylvania, the Coroner appoints two classes of deputies - the first class is the chief or full -time deputy who is an employee of the county and the second class is the part-time or casual deputy who is not employed by the county but is on call. Weinert, 96 -002 June 12, 1996 Page 2 You state that Chief and full time deputies could come under the jurisdiction of the Ethics Law as "public officials," but not as "public employees." Specifically, you contend that chief deputy coroners may be considered public officials subject to the Ethics Law if they take over the duties of the Coroner because the Coroner has died or has otherwise vacated the office. Otherwise, you opine that chief deputy coroners are not public officials because, unlike the Coroner, they do not hold nor are they invested with office. You question the inclusion of such first class deputies as within the definition of "public official" because they are not elected by the public or elected or appointed by a governmental body and because they are not appointed officials in the executive, legislative or judicial branches of the county. You argue that the first class deputies are nothing more than county employees who are not responsible for taking or recommending official action of a nonministerial nature with regard to the five listed subjects within the statutory definition of "public employee." You assert that the above arguments make an even stronger case for the second class of deputies, the "on- call" deputy coroners. You argue that these individuals should not be considered "public employees" as defined in the Ethics Law because they are not paid wages or salaries by the county but work under a contract and are paid for the services they render under that contract. You opine that these other deputies are independent contractors in that there is no withholding from their compensation for taxes, social security, or unemployment. You state that Section 1231 of the County Code states that these persons have the same powers as coroners but does not state that they can act in his place or stead. You agree that a chief deputy acting under Section 1214 is subject to the jurisdiction of the Ethics Law, but you do not so agree as to a deputy who is appointed under Section 1231 and who is not employed by the County. In sum, it is your view that deputy coroners would not fall under the Ethics Law unless they are filling a vacancy in the office of Coroner or they are county employees whose functions fall within one of the five enumerated areas set forth in the definition of public employee. 11I. DISCUSSION: Since you challenge whether deputy coroners are public officials required to file Statements of Financial Interests under the Ethics Law, it is necessary to analyze the duties, functions and responsibilities of deputy coroners in order to determine whether they are covered under the statutory definition of public official and the Regulations of the Commission. Philips v. State Ethics Commission, 79 Pa. Commw. 491, 470 A. 2d 659 (1984). "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 Weiner, 96 -002 June 12, 1996 Page 3 65 P.S. §402. exercise the power of the State or any political subdivision thereof. The regulations of the State Ethics Commission similarly define the term "public official," with 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. Weinert. 96 -002 June 12, 1996 Page 4 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). We must review the question you present under these provisions of the statute and the regulations of the Commission in light of the 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 may carry out those functions. See Philips v. State Ethics Commission, supra; JVlummau 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 that coverage under the Ethics Act be construed broadly, rather than narrowly, and that exclusions from the Ethics Act 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 deputy coroners, we must conclude that they are "public officials" subject to the financial reporting and disclosure requirements of the State Ethics Act. The County Code provides: §1214. Chief deputy coroner to act as coroner in case of a vacancy If any coroner shall be legally removed from his office or shall die or resign before the expiration of the term for which he was Weinert, 96 -002 June 12, 1996 Page 5 commissioned, the chief deputy coroner shall execute the office of coroner and perform all things thereunto appertaining and receive and retain for his own use the compensation provide by law for coroners until another coroner is commissioned and notice thereof is given to such chief deputy coroner. §1231. Deputies The coroner may appoint one or more deputies to act in his place and stead, as he may deem proper and necessary. Such deputy or deputies shall have the same powers as the coroner. 16 P.S. § § 1214, 1231. In their capacity as deputy coroners, such persons have the power to "act in . [the coroner's] place and stead ... [and] shall have the same powers as the coroner." 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 a deputy coroner is a "public official." As for your assertion that the chief or full time deputy coroners do not fit within the definition of public official as not being appointed in the executive, legislative or judicial branches of the County, this argument was made and rejected in Fernan /Foradora, Opinion 95 -010: It is clear to us that your argument confuses being a Solicitor "for" the County with being the County Solicitor. Your status as Solicitors working "for" Elk County is not negated by the fact that you render your services to only certain County officers. We agree with the Advice of Counsel that a given political subdivision may and usually is itself comprised of numerous divisions, units and offices which may require separate legal representation, yet all are still part of that same political subdivision. It is our view that the attorneys for those entities are likewise attorneys for the political subdivision itself, even though, within the parameters of the Rules of Professional Conduct, they may at times be representing different and conflicting interests. Furthermore, in interpreting the Ethics Law, this Commission is not required to consult or give deference to your profession's Rules of Professional Conduct. It is significant that you, and the County row officers who retain you, are paid by the County, with County checks, from County funds, pursuant to budgets (which include salaries) submitted to the County for County approval. Without the County, none of you would get paid. Given our conclusion that deputy coroners are public officials, we need not address your claim that they could not be public employees because they are not paid wages by the County but are independent contractors. Nevertheless, we note that the Ethics Law does not preclude such a payment arrangement. Many public employees are paid and perform their duties pursuant to a contract with a governmental body. The Ethics Law does not dictate how payment arrangements are Weinert, 96 -002 June 12, 1996 Page 6 to be made. By the same token, the Ethics Law does not hinge status based upon how payment arrangements are made. Since it is provided in law that deputy coroners, be they chief, full time or part time coroners, have the power of the coroner, the conclusion must be that they are subject to the Ethics Law and the FIS filing requirements. See, Phillips, supra. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. IV. CONCLUSION: Deputy coroners are public officials subject to the Financial Interests Statement filing requirement of the Ethics Law. he Commis , 6 da," Daneen E. Reese Chair Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration.