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HomeMy WebLinkAbout03-011 ShearerI. ISSUE: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Donald M. McCurdy Michael J. Healey Paul M. Henry DATE DECIDED: 12/2/03 DATE MAILED: 12/15/03 03 -011 Detective Sergeant Robert Shearer Bell Township Police Department P.O. Box D Salina, PA 15680 Re: Public Employee; FIS; Detective Sergeant; Police Officer; Township; Grant; Application; Appeal of Advice. Dear Sergeant Shearer: This Opinion is issued in response to the deemed appeal of Advice of Counsel, 03 -588, which was issued on September 10, 2003. Whether a detective sergeant who has the power to apply for grant funds for the police department of a township would be considered a "public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, and particularly, the requirements for filing Statements of Financial Interests. II. FACTUAL BASIS FOR DETERMINATION: By letter dated September 15, 2003, you challenged Advice of Counsel, 03 -588 issued September 10, 2003, which challenge was docketed as an appeal of advice. In an initial memorandum of August 6, 2003, entitled "Erroneous Request for Ethics Form," you provided the following list of your job duties: "Conducts general patrols of the township, monitors and issues traffic citations, investigates criminal activity, makes arrests Shearer 03 -011 Page 2 when necessary, and attends hearings and court trials when required. Enforces township ordinance code. Attends required law enforcement training. Reports directly to township supervisors regarding activities of the department. Initiates actions after direction from township supervisors.' You concluded your memorandum by expressing hope that the issue would be resolved. Commission staff treated your memorandum as a request for an advisory. A copy of the minutes of Bell Township for March 13, 2001, was obtained which state A motion by wade [sic] by Phillip Calandrella and seconded by Richard 0' Bradovich that Robert Shearer be given the title of Detective Sergent [sic]. His salary will remain the same. The title will beeter [sic] enable him to apply for grant funds for the Police Department. On September 10, 2003, Advice of Counsel, 03 -588 was issued. That advice concluded that in your capacity as Detective Sergeant with Bell Township, you are a "public employee" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission so that you must file a Statement of Financial Interests. By letter dated September 15, 2003, although you did not specifically appeal Advice of Counsel, 03 -588, you proffered arguments that you are not a public employee. You stated that if the matter was not concluded, a meeting before this Commission should be scheduled. By letter dated September 22, 2003, you were notified that your letter would be treated as an appeal of advice. In your letter, you express puzzlement as to the Advice of Council which stated that you requested an advice when you in fact only contacted Commission representatives as a courtesy to advise of what you perceive as an error in applying the filing requirement of the Ethics Act. In response to the request for your job description, you forwarded your memo to the Commission. You note that you did not submit a copy of Bell Township meeting minutes. As to the references to the minutes in the Advice of Council regarding grants, you state that you only contact various agencies for information. However, you note that you do not administer or monitor grants and have no direct authority to spend grant funds. Since the police department does not have a specific budget, you must request the expenditure of funds for any items such as uniforms or equipment. You state that you are a police officer, not the Chief of Police and not the designated Officer in Charge of your department. You quote from the Regulations but cite the quoted material as the statutory Ethics Act, 65 Pa.C.S. 1102(v)(A) [sic]. The quoted Regulation deals with the exclusion of certain individuals from the definition of public employee, such as, police officers, and others. You note that your professional duties necessitate the arrest and prosecution of members of the public and in order to protect yourself and your family, you have an unqualified right to shield personal information from public scrutiny to prevent the possibility of reprisals as a police officer. in part: You disagree with the conclusion in the Advice of Counsel and assert that you are not a "public employee" as that term is defined in the Ethics Act. By letter dated October 31, 2003, you were notified of the date, time and location of the public meeting at which this matter would be considered. III. 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, this Commission does not engage in an independent investigation of Shearer 03 -011 Page 3 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. 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. (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 Shearer 03 -011 Page 4 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 theminorjudiciary. (F) School superintendents, assistant superintendents, school business managers and principals. (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. The determination as to whether an individual is a "public employee" is made by Shearer 03 -011 Page 5 applying an objective test as enunciated by the Commonwealth Court of Pennsylvania in Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984) wherein the Court also directed that coverage under the Ethics Act is to be applied broadly and exclusions narrowly. The objective test of whether an individual is a "public employee" considers the powers and duties of the individual in the position rather than the limited functions the individual may actually perform. Thus, the objective test considers what an individual has the power or right to do in a given position rather than the variable functions that certain individuals actually may perform in that position. If your duties and responsibilities were limited to a police officer, we would agree that you would not be a "public employee" under the Regulations. However, the township board has given you the power "... to apply for grant funds for the Police Department." Despite your assertion that you only contact agencies for information, the power exists for you to apply for such grants which is the controlling factor under the objective test. Given that you have such power to apply for grants, you would then have a greater than de minimis economic impact upon the interests of any person. As such, you meet the statutory and regulatory criteria for a "public employee." You argue that the police department does not have a specific budget so that the expenditure of funds must be requested. Your argument deals with the spending of funds, not the seeking of grants. Although the expenditure of funds is a factor in determining coverage, it is not the sole or controlling factor. Your concern that the meeting minutes were not supplied by you but were obtained by Commission staff is immaterial. In determining coverage under the Ethics Act, the governmental body of the individual is contacted to supply information as to the individual's duties and responsibilities. As to your puzzlement regarding the issuance of the Advice when you did not ask for an advisory, the Commission staff letter of August 11, 2003, specifically states that " ... your Memorandum ... will be treated as a request for an advisory ..." (Emphasis added). Regarding your final argument that you have the right to shield personal information from the public out of concern of possible reprisals, it is the law that public officials /public employees are required to file. The law may not and does not carve out exceptions for individuals just because they work in certain job areas, like in the Department of Corrections or State Police. In short, filing is a concomitant part of public service. A review of the Statement of Financial Interests disclosure requirements reflects that sensitive information such as a Social Security Number or bank account number is not required. Further, as to the completion of a filer's address, he /she has the option of listing the address of his /her governmental body rather than a personal address. See, Bodo, Opinion 96 -007. However, the information that is required to be listed is statutory. If an individual is a public official /public employee, the law requires him /her to file, listing information that is true, accurate and complete. Based upon the above analysis, you are a public employee, required to file a Statement of Financial interests. Accordingly, we deny the appeal and affirm Advice of Counsel 03 -588. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV. CONCLUSION: A detective sergeant who has the power to apply for grant funds for the police department of a township is a "public employee" subject to the Public Official and Employee Shearer 03 -011 Page 6 Ethics Act, 65 Pa.C.S. § 1101 et seq., the Regulations of the State Ethics Commission, and filing requirements as to Statements of Financial Interests. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(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, a party 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 party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair