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HomeMy WebLinkAbout80-055 PeffleyBarry J. Peffley Mancke & Lightman Suite 1300 Payne- Shoemaker Building P.O. Box 1082 Harrisburg, PA 17108 I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 December 3, 1980 OPINION OF THE COMMISSION 80 -055 RE: Liquor Control Board Agents, Applicability of Ethics Act Dear Mr. Peffley: This responds to your letter of October 30, 1980 in which you requested that the full Commission review the Advice of Counsel, 80 -8A. This Advice is attached hereto in representative form and was forwarded to those individuals named on the attached list. As Counsel for all those iden- tified on this list you request that the Commission review this matter, described more fully below: Are Liquor Control Board (LCB) Enforcement Officers I & II "public employees" required to file Financial Interest Statements under the Ethics Act? II. Factual Basis for Determination: We have secured the official descriptions for the job classifications for the positions Enforcement Officer I and II. These job descriptions are attached and made part of this opinion by reference. Essentially, these descriptions indicate that among other duties, persons within these classifications: 1. Perform investigations, inspections and audits usually in the field to enforce the state alco- holic beverage laws and regulations and to as- certain compliance with these laws and regula- tions; Barry J. Peffley December 3, 1980 Page 2 2. participate in and /or lead raids on establishments suspected of operating in violation of the state alcoholic beverage laws or regulations; and 3. investigate the personal history and financial status of applicants for liquor-licenses. In the performance of these duties, 1 and 2 above, Enforcement Officers may seize illegal stills, confiscate other evidence and apprehend and arrest persons suspected of violating the state alcoholic beverage law. These Officers perform their investigatory functions on -site and make recommendations regarding the issuance of licences. The Commission has read and considered those items (Exhibits 1 through 17) submitted by you to support your contention that Liquor Control Board Enforcement Officers are not "public employees" within the meaning of the Ethics Act and therefore are not subject to the requirement that they file Financial Interest Statements. These documents do not affect the substance of our conclusion. III. Applicable Law: The Ethics Act applies to all persons within the definition of "public employee" which is repeated below: 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 minimus nature on the interest of any person. 65 P.S. 402. Commission regulations elaborate on this definition as follows: Public employees are those individuals employed be the Commonwealth or a political subdivision whose work is in the functional areas specified in the paragraph above and who meet the criteria of either clause a or b of this sub- paragraph. Barry J. Peffley December 3, 1980 Page 3 a) A person who normally performs his or her re- sponsibility in the field with on -site super- vision; or, The immediate supervisor of such a person; or, The supervisor of the highest level field office. b) A person with the authority to make final decisions; or, With the authority to forward or stop recom- mendations from being sent to the person or body with the authority to make final de- cisions; or, Who prepares or supervises the preparation of final recommendations; or, .. Who makes the final technical recommenda- tions; and Whose recommendations or actions are an inherent and recurring part of his or her position and affect organizations other than his or her own. Persons in the positions listed below are generally considered public employees...police chiefs... Persons in the positions listed below are generally not considered public employees. City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, contruction workers, detectives, equipment operators, and recreation directors. Law clerk, court crier, court reporter, probation officer, security guard and writ server, school teachers, and clerks of the schools. (emphasis supplied) 51 Pa. Code, Chapter 2. Barry J. Peffley December 3, 1980 Page 4 The Commission recognizes that the powers and duties of the employees of the LCB designated as officers and investigators are set forth in the Liquor Code as follows: In addition, the Commission's regulations note that: 4.10(e) The examples given in any chapter are for general guidance only and are not conclusive as to exclusion or inclu- sion in the main category; therefore, the head of each agency or governmental body is responsible for the determination as to whether an indi- vidual meets the requirements of any definition of this title. 51 Pa. Code 4.10 e. §2 -209. Officers and investigators of the board to be peace officers; powers Such employees of the board as are designated "enforcement officers" or "investigators" are hereby declared to be peace officers and are hereby given police power and authority throughout the Commonwealth to arrest on view, except in private homes, without warrant, any person actually engaged in the unlawful sale, importation, manufacture or transportation, or having unlawful possession of liquor, alcohol or malt or brewed beverages, contrary to the provisions of this act or any other law of this Commonwealth. Such officers and investigators shall have power and authority, upon reasonable and probable cause, to search for and to seize without warrant or process, except in private homes, any liquor, alcohol and malt or brewed beverages unlawfully possessed, manafactured, sold, imported or transported, and any stills, equipment, materials, utensils, vehicles, boats, vessels, animals, aircraft, or any of them, which are or have been used in the unlawful manufacture, sale, importation or transportation of the same. Such liquor, alcohol, malt or brewed beverages, stills, equipment, materials, utensils, vehicles, boats, vessels, animals or aircraft so seized shall be disposed of as hereinafter provided. Enforcement officers or investigators may be retired upon reaching age sixty -five. 47 P.S. 2 -209. Barry J. Peffley December 3, 1980 Page 5 The Commission also specifically notes that the Liquor Code imposes some general duties and obligations upon its employees, as follows: These provisions of the Liquor Code seem to dove -tail with the Ethics Act, which is designed to fulfill a specific purpose, as enunciated by the Legislature in Section 1 of the Ethics Act, repeated below: 52 -210. Restrictions on members of the board and employees of commonwealth (a) A member or employe of the board shall . not be directly or indirectly interested or engages in any other business or undertaking dealing in liquor, alcohol, or malt or brewed beverages, whether as owner, partner, member of syndicate, shareholder, agent or employe, and whether for his own benefit or in a fiduciary capacity for some other person. (b) No member or employe of the board nor any employe of the Commonwealth shall solicit or receive, directly or indirectly, any commission, remuneration or gift whatsoever, from any person having sold, selling or offering liquor or alcohol for sale to the board for use in Pennsylvania Liquor Stores. 47 Y.S. 2 -210. The Legislature hereby declares that public office is a public trust and that any effort to realize personal gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have the right to be assured that the financial interest of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can be sustained by assuring the people of the impar- tiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. Barry J. Peffley December 3, 1980 Page 6 IV. Discussion: The question presented is simply stated: Are LCB Enforcement Officers I and II "public employees" and there- fore required to file Financial Interest Statements under the Ethics Act? This question must be reviewed and answered in relation to the Ethics Act, its purpose and, of course, the Commission's regulations. It must be reviewed and answered in light of the duties and obligations of the officers in question as these duties are enunciated by statute or otherwise. We recognize that these persons argue that the regulations of the Commission state that "generally" persons designated as "police officers" are not "public employees" under the Ethics Act and therefore need not file financial statements. We are not unmindful of various other legal arguments that these officers are pursuing in other forums. For example, we are aware that these persons are currently pursuing the question of whether they are "policemen" within the meaning of Act 111, Act of June 24, 1968, P.L. 237, 43 P.S. 217.1 et seq. (hereinafter Act 111) before the Pennsylvania Labor Relations Board (PLRB). However, we emphasize that our discussion and decision is necessarily independent of the arguments and concerns raised under Act 111 before the PLRB. Our decision, must and should be based primarily on the Ethics Act. Our decision should not be viewed as dependent on any decision the PLRB might render in relation to whether these persons are "policemen" for coverage of Act 111 or be said to be in derogation of any such decision. Turning to the Ethics Act, as the initial and primary point of discussion then, we must review the Act itself. The definition of "public employee" includes anyone who inspects, regulates, or audits. Clearly under these cri- teria, these Officers are within the definition and should be required to file Financial Interest Statements. There really would be need for further discussion if it were not for the fact that the Commission, by regulation had stated that, "generally ", persons employed as "police officers" were not "public employees" within the coverage of the Ethics Act. The LCB Officers, seizing this example now present the following syllogism: We are police officers; the regulations of the Commission exclude police officers from coverage, and therefore we are exempt from coverage under the Ethics Act. Barry J. Peffley December 3, 1980 Page 7 The logic of this syllogism is easily pierced. First, it rests on the premise that these persons are "police officers." Second, it ignores the proviso in the regulation that police officers are "generally" excluded and that these "examples are for general guidance only and are not con- clusive as to the exclusion or inclusion" of any group, in any event. 51 Pa. Code 4.10 e. The logic also fails when it is found that the financial reporting provisions of the Ethics Act have been applied to "police officers" who engage in activities within the scope of the term "public employee" in the Ethics Act. Finally, these officers in presenting this contention fail to recognize that in its determination, the Commission must make every effort to fulfill the purposes of the Act in general. Each of these points is discussed more fully below. Beginning with the last point first, the Commission emphasizes that the purpose of the Ethics Act in restoring the trust of the public must be of vital concern to us in addressing and answering the question of whether a particular category of employees fall within the parameters of the Ethics Act. All efforts at interpreting and /or applying the Ethics Act or its regulations should be designed to effectuate this goal as enunciated by the legislature. See Statutory Construction Act, Act of November 25, 1970, P.L. 707, No. 230 as amended, 1 Pa. C.S.A. 1921. Thus, if the individuals in question here engage in activities designated by the Legislature in the definition of "public employee" and if the purpose of the Act may be effectuated by applying the Act to them, these Officers should be included within the Act's coverage. This conclusion is clear even in light of the regulations that "generally" would exclude "police officers." It must be noted that the Act has been applied even to those persons who would generally be thought of as "police officers," i.e. State Policemen, where to do so would fulfill the purpose of the Act and where these persons perform duties within the scope of the definition of "public employee." Specifically we have required financial reporting and have received and reviewed reports from State policeman engaged in Fire Marshall duties and State Garage inspection duties. These LCB officers are intimately involved with tasks clearly within the scope of the definition of "public employee" inspecting, auditing and regulating. The public must be on notice that these Officers are charged with a public trust Barry J. Peffley December 3, 1980 Page 8 and be assured that such trust is not violated. The purpose of the Ethics Act and the definition of the term "public employee" require us to conclude that these Officers -- like the State police who perform certain tasks are within the scope of the Ethics Act. It may still be argued that the regulations of the Commission require the contrary conclusion. We are not convinced by this argument. As noted, these categories were designed as examples, not classifications written in stone. These examples do not preclude the conclusion that these Enforcement Officers as with certain state policeman are included under the definition of "public employee" as set forth in the Ethics Act for several reasons. First, the term "police officer" is used, but not defined in the regulation. Accordingly, to fall within the category of "police officers" who might generally be excluded from coverage, these individuals must demonstrate that they are, "police officers" within the common and ordinary meaning of that term. See Statutory Construction Act, 1 Pa. C.S.A. 1903. "Police officer" certainly has a common and ordinary meaning, as we view it. Most people, we believe, perceive a police officer as a member of an organized force charged with the duty of maintaining the general peace and order of a community. A "police officer" is someone authorized or empowered to perform functions considered critical to public safety including the detection and investigation of serious crimes and the apprehension and arrest of.offenders. See Beaver Falls City Council v. P.H.R.C., 17 Pa. Cmwlth. 31, 330 A.2d 581 (1975) and Hartshorn v. Allegheny County, 9 Pa. Cmwlth. 132, 304 A.2d 716 (1973). A "police officer "is usually someone to whom a citizen could register a complaint regarding criminal activity in general, and who can be expected to investigate and resolve that complaint. Venneri v. Allegheny County, 12 Pa. Cmwlth. 517, 316 A.2d 120 (1974). See also Rules of Criminal Procedure, Rule 51, Comment as to persons who may issue citations and make arrests, for general concepts of police powers. Given these generally accepted concepts of who is a "police officer," the Commission cannot conclude, even in the common, ordinary meaning of the phrase that these Enforcement Officers are "police officers." They are not charged with the general duty of maintaining peace and order. They are charged with the specific and limited duty to enforce the provisions of the Liquor Code. They are not Barry J. Peffley December 3, 1980 Page 9 performing, even as to these duties, functions that could legitimately be considered critical to the public safety and related to serious crimes. They perform important, but not critical functions relating to crimes, in general, but not to crimes typically thought of as "serious ", ie. murder, burglary, extortion, assault, etc. A citizen could not demand that they investigate a general complaint regarding criminal activity, other than activity relating to the Liquor Code. In sum, while these persons are deemed by their own statute (47 P.S. 2 -209) to be "peace officers" and they are charged with certain important duties, they would not normally be thought of as "police officers." Hence, we find that these LCB Enforcement Officers are not "police officers" within the common meaning of that term as generally understood. The term "police officer" as used in our regulations and applied here, leads us to conclude that these persons are not excluded from coverage of the Ethics Act as "police officers," who are generally considered not covered by the Act. If support for what is the common and ordinary meaning of "police officer" is required, other than referring to the meaning derived from logic and the cases cited above, reference should be made to a pertinent Opinion of the Attorney General, dated April 23, 1973, No. 1973 -25 (3 Pa. Bulletin, No. 19, p. 666, May 5, 1973). There, Attorney General Packel faced the question of whether LCB Enforcement Officers are "policemen" within the meaning of Act 111, the Policemen and Firemen's Collective Bargaining Act (43 P.S. 217.1 et. seq.). If they were covered by Act 111 they would be subject to the collective bargaining procedures applicable to police and firemen, in general, including the provisions of mandatory and binding arbitration. The Opinion reviewed the question by looking at the purpose of Act 111 rather than merely looking to dictionary definitions or court cases which may have construed the word "policeman" in the context of other laws or questions. The Opinion concluded that while LCB Enforcement Officers are "peace officers" they are not "policeman" under Act 111. Essentially, the ruling was based on the concept that if LCB Officers went on strike (the evil Act 111 sought to avoid), the lives and property of the general public would not be in imminent peril. The goal of Act 111 securing the safety and property of the general public by avoiding labor disputes in the essential areas of police and fire protection would not be infringed if these LCB Officers were permitted the limited right to strike provided for public employees, other than Barry J. Pef f ley December 3, 1980 Page 10 police and firefighting forces. See Public Employees Relations Act, Act of July 23, 1970, P.L. 563, 43 P.S. 1101. 101 et. seq. as amended. We specifically note that Exhibit 17 submitted to us appears to be an Opinion of the Attorney General dated March 30, 1973 on this same topic. This "Opinion is totally opposite of the above -cited Opinion 1973 -25. However, our research has not shown that the "Opinion" dated March 30, 1973 was ever published as an official opinion. In any event, Opinion 1973 -25 would prevail as the later in time. The concepts contained in Opinion 1973 -25 may be applied here. The aim their government. Although the Liquor Code, for example, already prohibits employees of the LCB from accepting gifts from liquor suppliers (47 P.S. 2- 210), the Legislature must have determined that further "checks" on these "gifts" were warranted. The Legislature's enactment of the Ethics Act, including disclosure of receipt of such "gifts" indicates that they felt the public's confi- dence in government and their officials was not being adequately promoted by the mere presence on the books of such prohibitions against "gifts ", for example. Thus, where employees are performing nonministerial funcitons, such as inspecting facilities and persons and making recommendations regarding same delineated by the Act the Legislature imposed the requirements of the Ethics Act. These officers, as discussed above, perform functions within the areas delineated by the Ethics Act and do not fall within the category of , "police officers' generally excluded from coverage by our regulations. To rule otherwise would ignore the requirements of the,Ethics Act and the common meaning of the phrase "police officers." To allow these officers to escape application of the Ethics Act by facile and loose reference to the phrase "police officers" would not serve the purpose of the Act. Effecting the purpose of the Act, as enunciated by the Legislature, and liberally construing the Act to promote disclosure must be our goal. This compels us to conclude that LCB Enforcement Officers are "public employees" within the coverage of the Ethics Act. V. Conclusion: LCB Enforcement Officers I and II are "public employees" within the meaning of the Ethics Act. They must file Financial Interest Statements as required by Section 4 of the Act. These Statements should be filed within thirty (30) days of this Opinion. Barry J. Peffley December 3, 1980 Page 11 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 on the advice given. This letter is a public record and will be made available as such. PJS /na ti 2 PAUL J. Chairman TH