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HomeMy WebLinkAbout02-523 OConnellJohn M. O'Connell, Jr., Esquire O'Connell & Silvis 131 West Pittsburgh Street Greensburg, PA 15601 -2387 Dear Mr. O'Connell: ADVICE OF COUNSEL February 27, 2002 Re: Public Official /Employee; Solicitor; Municipal Authority, FIS, Filing Location 02 -523 This responds to your letters dated January 16, 2002, and January 22, 2002, by which you requested advice from the State Ethics Commission. Issue: What is the proper filing location for a solicitor of a sewage authority and a county transit authority to file his Statements of Financial Interests under the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ( "Ethics Act "). Facts: You are the Solicitor for the Greater Greensburg Sewage Authority (" ewage Authority ") and the Westmoreland County Transit Authority ( "Transit Authority"). The Sewage Authority Board consists of seven members. Three members are appointed by the City of Greensburg, two members are appointed by the Borough of South Greensburg, and two members are appointed by the Borough of Southwest Greensburg. The Transit Authority also consists of seven members, all of whom are appointed by the Westmoreland County Commissioners. You ask where you are required to file your Statement of Financial Interest as Solicitor for both the Sewage Authority and the Transit Authority. 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 requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor 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 material facts relevant to the inquiry. 65 Pa.C.S. § §1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Assuming that as Solicitor for the Greater Greensburg Sewage Authority ("Sewage Authority ") and the Westmoreland County Transit Authority ( "Transit Authority "), you are retained by — as opposed to being an employee of — the Sewage O'Connell, 00 -523 February 27, 2002 Page 2 Authority and the Transit Authority, you are not a public official /public employee subject to the conflict of interest provisions of the Ethics Act. See, Foster, Opinion 98 -002. However, all Solicitors are required to file Statements of Financial Interests. 65 Pa.C.S. §1104(a). Section 1104(a) of the Ethics Act provides as follows: Section 1104. Statement of financial interests required to be filed. (a) Public official or public employee. - -Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. §1104(a). Therefore, you are required to file Statements of Financial Interests providing full disclosure as required by Sections 1104 and 1105 of the Ethics Act for each year such positions are held, and for the year following termination of service in such positions. As to the question you have posed, there are two applicable provisions in Section 1104(a) quoted above regarding the filing location as to public officials and public employees. The first general provision provides that a public official /public employee must file the Statement of Financial Interests with the department, agency, body or bureau in which he is employed or to which he is appointed or elected. The second provision provides that a public official /public employee shall file with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected. Assuming the Sewage Authority and the Transit Authority were created pursuant to the Municipality Authorities Act, 53 Pa.C.S. §5601 et seq, they are separate governmental bodies. Given that you were presumably appointed by the Sewage Authority and the Transit Authority, 1104(a) of the Ethics Act would require that you file your Statements of Financial Interests with the Sewage Authority and the Transit Authority. As to the Sewage Authority, you would not also have to file with the City of Greensburg, Borough of South Greensburg, and the Borough of Southwest Greensburg unless you are also the solicitor for any one or more of those municipalities, in which case, you must also file the Statement of Financial Interests in your capacity as solicitor for those other municipalities. Similarly, as to the Transit Authority, you would not also have to file with Westmoreland County unless you are also the solicitor for the County in which case, you must also file the Statement of Financial Interests in your capacity as Solicitor for the County. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not O'Connell, 00 -523 February 27, 2002 Page 3 involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Rules of Professional Conduct. Conclusion: Assuming that as Solicitor for the Greater Greensburg Sewage Authority ("Sewage Authority ") and the Westmoreland County Transit Authority ( "Transit Authority "), you are retained by — as opposed to being an employee of — the Sewage Authority and the Transit Authority, you are not a public official /public employee subject to the conflict of interest provisions of the Ethics Act. However, all Solicitors are required to file Statements of Financial Interests. Section 1104(a) of the Ethics Act requires that you file your Statement of Financial Interests with the Sewage Authority and the Transit Authority. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 civil or criminal proceeding, provided 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). 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. Sincerely, Vincent J. Dopko Chief Counsel