HomeMy WebLinkAbout02-571 YuscavageJoseph Yuscavage, III
102 Western Avenue
Towanda, PA 18848
Re: Public Employee /Former Public Employee; PennDOT; FIS; Creditors; Credit
Card Debts.
Dear Mr. Yuscavage:
ADVICE OF COUNSEL
June 21, 2002
02 -571
This responds to your submission received on May 22, 2001, which is being
considered a request for advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act (the "Ethics Act "), 65
Ha.GS. § 1101 et seq and the Regulations of the State Ethics Commission require a
current or former public employee to file a Statement of Financial Interests, and
particularly, to disclose credit card debts which cumulatively would exceed $6500, but
which individually might not exceed $6500.
Facts: You have submitted for review a copy of a March 25, 2002, letter which
you state you received from PennDOT's Bureau of Human Resources Director. The
letter bears the greeting, "Dear Former Department Employee." The letter generally
advises of some of the requirements for filing Statements of Financial Interests under
the Ethics Act, including the requirement that former public employees file the year after
termination of employment. The letter states that you have been designated as covered
by the Ethics Act and that you are required to file a Statement of Financial Interests this
year.
You state that you received the letter after you received notice that you were
returning to work for PennDOT, and that you disregarded the letter because you did not
consider yourself a "former" employee. However, upon further consideration of the
letter, you are now unsure as to whether the FIS filing requirements apply to you.
You ask two questions: (1) whether the requirements for filing Statements of
Financial Interests under the Ethics Act apply to you; and (2) if so, whether you must
disclose each creditor to whom is owed in excess of $6,500, or whether you must
disclose all creditors when the aggregate of your debts to such creditors (in this case,
credit card companies) exceeds $6,500.
Yuscavage, 02 -571
June 21, 2002
Page 2
Neither the PennDOT letter which you have submitted nor your note of inquiry
identifies the position you have held with PennDOT.
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.
In considering the first question that you have posed, it is noted that you have
neither identified nor submitted a job description for the employment position you have
held with PennDOT. Consequently, it cannot be determined within this Advice whether
in such position you would be considered a "public employee" as defined by the Ethics
Act, and therefore subject to the requirements for filing Statements of Financial
Interests. This Advice must necessarily be limited to providing the following general
guidance as to your status.
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:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(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.
Yuscavage, 02 -571
June 21, 2002
Page 3
(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 office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations 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 recommen-
dations.
(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.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary - treasurers
acting as managers, police chiefs, chief clerks, chief
purchasing agents, grant and contract managers,
administrative officers, housing and building 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.
Yuscavage, 02 -571
June 21, 2002
Page 4
(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.
Status as a "public employee" subject to the Ethics Act is determined by applying
the above definition and criteria to the position held. The focus is necessarily upon the
position itself, and not upon 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, Phillips 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
coverage under the Ethics Act be construed broadly and that exclusions under the
Ethics Act be construed narrowly. See, Phillips, supra.
To the extent the duties and responsibilities of your position with PennDOT would
be such that the power would exist to take or recommend official action of a non -
ministerial nature with respect to one or more of the following: contracting; procurement;
planning; inspecting; administering or monitoring grants; leasing; regulating; auditing; or
other activities where the economic impact would be greater than de minimis on the
interests of another person, you would be considered a 'public employee" subject to the
Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §
1102; 51 Pa. Code § 11.1.
If you would be considered a "public employee" subject to the Ethics Act, you
would, upon termination of public service, become a 'former public employee."
Thereafter, if you would resume employment with PennDOT, either in the same position
or in another position in which you would qualify as a public employee, you would cease
to be a former public employee and would resume status as a public employee. See,
McGlathery, Opinion 00 -004 (holding that a public employee who would retire from
PennDOT but would subsequently return to work for PennDOT under a program which
allows retirees to work up to 95 days per fiscal year would, in so doing, become a public
employee again, and upon termination of service under that program, would once again
become a former public employee. Id.)
Pursuant to Section 1104(a) of the Ethics Act, a public employee must file a
Statement of Financial interests each year a public position is held and the year after
leaving such a position:
iled 1104. Statement of financial interests required to be
(a) Public official or public employee. - -Each public official
of the Commonwealth shall file a statement of financial
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
Yuscavage, 02 -571
June 21, 2002
Page 5
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
a position... .
65 Pa.C.S. § 1104(a) (Emphasis added). If a filer is a public employee and a former
public employee during the same year, he should mark both statuses in Block 3 and
complete all of the applicable information in Blocks 4 and 5 of the Statement of
Financial Interests form.
Turning to your second question, regarding disclosure of creditors, the
substantive requirements for disclosure on the Statement of Financial Interests form are
set forth in Section 1105 of the Ethics Act. Section 1105(a) provides:
§ 1105. Statement of financial interests
(a) Form. - -The statement of financial interests filed
pursuant to this chapter shall be on a form prescribed by the
commission. All information requested on the statement shall
be provided to the best of the knowledge, information and
belief of the person required to file and shall be signed under
oath or equivalent affirmation.
65 Pa.C.S. § 1105(a).
Section 1105(b)(4) of the Ethics Act sets forth the following requirements
regarding disclosure of creditors:
§ 1105. Statement of financial interests
(b) Required information. - -The statement shall
include the following information for the prior calendar year
with regard to the person required to file the statement.
(4) The name and address of each creditor to
whom is owed in excess of $6 500 and the interest
rate thereon. However, loans or credit extended
between members of the immediate family and
mortgages securing real property which is the
principal or secondary residence of the person filing
shall not be included.
65 Pa.C.S. § 1105(b)(4) (Emphasis added).
On its face, Section 1105(b)(4) of the Ethics Act requires disclosure of the name
and address of each creditor to whom is owed in excess of $6,500 and the interest rate
thereon. Therefore, you would be required to disclose such information as to a given
credit card company if the total balance owed to that credit card company would exceed
$6,500 at any time during the particular calendar year in question. You would not be
required to disclose a given creditor to whom the total balance owed would be $6,500 or
less, because such would be below the threshold requiring disclosure.
Yuscavage, 02 -571
June 21, 2002
Page 6
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 involve an
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of
the Governor's Code of Conduct.
Conclusion: Based upon the submitted facts, which do not identify the position
you have held with PennDOT, it cannot be determined whether in such position you
would be considered a "public employee" subject to the Ethics Act. If you would be
considered a public employee subject to the Ethics Act, you would, upon termination of
public service, become a former public employee." Upon resuming employment with
PennDOT, either in the same position or in another position in which you would qualify
as a public employee, you would cease to be a former public employee and would
resume status as a public employee. Pursuant to the Ethics Act, a public employee
must file a Statement of Financial interests each ear a public position is held and the
year after leaving such a position. 65 Pa.C.S. § 1104(a). Section 1105(b)(4) the
Ethics Act requires disclosure on the Statement of Financial Interests of the name and
address of each creditor to whom is owed in excess of $6,500 and the interest rate
thereon.
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 ). TThe 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