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HomeMy WebLinkAbout04-511 O'ConnellJohn M. O'Connell, Jr. O'Connell & Silvis, LLP 131 West Pittsburgh Street Greensburg, PA 15601 -2387 Re: Conflict; Public Official /Employee; Authority Board Member; Statement of Financial Interests; Reporting Requirements; Transportation, Hospitality and Lodging. Dear Mr. O'Connell: ADVICE OF COUNSEL February 17, 2004 04 -511 This responds to your letter of January 13, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1a. =S. § 1101 et seq., requires an authority board member for Statement of Financial Interests reporting purposes to disclose the source and amount of reimbursement for transportation, lodging and hospitality, where the board member attended a conference on behalf of the authority, and the authority reimbursed the board member for his transportation, lodging and hospitality. Facts: As Solicitor for the Westmoreland County Transit Authority (the "Authority "), y ave been authorized by Authority Board Member, Harry E. Smith ( "Smith "), to seek an advisory as to the Statement of Financial Interests as it relates to transportation, lodging and hospitality. You state that Smith attended a transit conference on behalf of the Authority and the Authority reimbursed him for travel, lodging, and meals. You ask whether Smith must disclose this information on his Statement of Financial Interests. 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. O'Connell /Smith, 04 -511 February 17, 2004 Page 2 As an Authority Board Member, Smith is a public official as that term is defined in the Ethics Act, and hence Smith is subject to the provisions of that Act, including the filing and reporting requirements for the Statement of Financial Interests. Section 1105 of the Ethics Act provides in pertinent part as follows: § 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. (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: (7) The name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual expenses for transportation and lodging or hospitality exceed $650 in the course of a single occurrence. This paragraph shall not apply to expenses reimbursed by a governmental body or to expenses reimbursed by an organization or association of public officials or employees of political subdivisions which the public official or employee serves in an official capacity. 65 Pa.C.S. § 1105. Section 1102 of the Ethics Act defines "Governmental body" as follows: "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. 65 Pa.C.S. § 1102 (Emphasis added). Section 5(b)/1105 (b) of the Ethics Act requires that every public official /public employee and candidate list the name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation, lodging or hospitality received in connection with public office /employment where such expenses exceed $650 for a single occurrence, but excludes from disclosure expenses reimbursed by a governmental body or an organization or association of public officials or employees of political subdivisions which the public official or employee serves in an official capacity. You state that Smith attended a transit conference on behalf of the Authority and the Authority reimbursed him for travel, lodging and meals. Assuming such expenses exceeded $650, Smith would not be required to disclose the source and the amount of O'Connell /Smith, 04 -511 February 17, 2004 Page 3 reimbursement, because the Authority, a governmental body, was the source of such reimbursement. See, Noye, Opinion 91 -007. 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. Conclusion: As a member of the Board of Directors for the Westmoreland County I ransit Authority (the "Authority"), Harry E. Smith ("Smith") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. 1101 et seq. Where Smith attended a transit conference on behalf of the Authority an the Atlhori y reimbursed him for travel, lodging and meals, assuming such expenses exceeded $650, Smith would not be required to disclose the source and the amount of reimbursement, because the �hority, a governmental body, was the source of such reimbursement. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Sincerely, Vincent J. Dopko Chief Counsel 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.