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HomeMy WebLinkAbout92-640Mr. William R. Maslo 514 Franklin Street Reading, PA 19602 Dear Mr. Maslo: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA .17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 3,_1 92 -640 Re: Public Employee /Official, FIS, Independent Auditor, Limited Contractual Services. This responds to your letter of September 25, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the - appointed independent auditor for a municipality, who performs limited contractual services without an on -going relationship or duties with the municipality, is to be considered a "public employee" or "public official" under the Ethics Law, and therefore, required to comply with the financial reporting and disclosure provisions of the. Ethics Law. Facts: Noting a prior informal discussion with Commission staff concerning the requirements of the Ethics Law with regard to a certified public accountant serving as the appointed independent auditor for a municipality, you seek an advisory from the State Ethics Commission. You state that you serve as the appointed auditor of one borough and two townships. You state that it was your understanding that the issue of whether an appointed auditor is subject to the filing of Statements of Financial Interests pursuant to the Ethics. Law was resolved by the Commonwealth Court decision in Rogers v. State Ethics Commission, 80 Pa. Cmwlth. 43, 470 A..2d 1120 (1984), which you state "squarely" held that appointed auditors are not "public officials" under the Ethics. Law.. However, you state that it was informally suggested to you by Commission staff that there may have been some r 1ev.ant change in the law. You nate that you. have ''been unable to fiud, any authorities which indicate that the Rocxers case has been over a, Qr superseded. You further state you' belief that the factax circumstances suanceunding your duties are the same as those which were examined by the Commonwealth Court in the Rogers case. In this regard, you state that in performing an independent audit for a political subdivision, you provide only I:he ° very Mr. William R. Maslo November 3, 1992 Page 2 limited services identified in the engagement letter which is accepted by the subdivision. The field work for the audit is usually performed in a few days, there is no ongoing relationship between you and the political subdivision, and you have no year round duties or responsibilities related to the municipality. You further state that the purpose of the - independent audit is to provide neutral information regarding financial matters, and that you may not take or recommend official action. You merely- provide a report, which is a matter of public record, to the political subdivision, attesting to its financial condition.. Based upon all of the above, you request an advisory confirming that you are not required to file Statements of Financial Interests pursuant to the Ethics Law in your,capacity as an appointed independent auditor. Discussion: It is initially noted that this advisory is based upon the facts which you have submitted, including your characterization of your relationship and duties with the various municipalities you serve as an independent auditor. The question to be answered is .whether you are to be considered a "public official" as that-term is defined in the State Ethics Law: 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. exercise the power of the State or . any political subdivision thereof Based upon the facts which you have submitted, you would not be considered a "public official" as that term • is defined in the Ethics .I.aw. This .conclusion is based upon the decision of the Commonwealth Court of Pennsylvania in Rorie v. tag Eta }gyp Commission, BO Pa... Cmwlth . 3, 470 A . 2d 1120 (2984) . the facts which you have subittededo indeed closely parallel those in the Rogers case, which continues to .be authoritative precedent on this issue. Thus, because you do not fall within the classification of the term "public official," you would not te subject to the financial reporting and disclosure requirements of the State Ethics Law. Accordingly, you wound not be required to file the Statement of "Financial Interest for the years in which you serve in that Mr. William R. Maslo November 3, 1992 Page 3 capacity. Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of- monetary value and no: public official /employee shall solicit or .accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public . official /employee would be influenced thereby. Lastly, 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 other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion:. As an appointed independent auditor for various municipalities who provides only very limited contractual services .usually performed in a few days, and who has no ongoing relationship or duties with such municipalities or any power to take or recommend official action, you are not to be considered a public official as defined in the Ethics Law. Accordingly, you would not be subject to the reporting and disclosure requirements of the State Ethics Law and_need: not file a Statement of Financial Interests. Sections 3(b) and (c) of the Ethics Law are applicable to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and euitence of good faith conduct in any other civil or criminal proceeding, providing the requestor.has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as Finally, if you with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. incerely, Vincent J. Dopko Chief Counsel