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HomeMy WebLinkAbout04-531 DispennettMaurice Dispennett 336 Zehner School Road Zelienople, PA 16063 ADVICE OF COUNSEL April 21, 2004 04 -531 Re: Public Official; SFI; Constable; Former Township Employee; Laborer; SFI Filing Requirements. Dear Mr. Dispennett: This responds to your letter dated March 15, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether as a Constable, you would be considered a "public official" subject fib Public Official and Employee Ethics Act (the "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 ( "SFI's "). Facts: You are a Constable in Jackson Township ( "Township "), having been appointed by the Butler County Courts in late 2003. You indicate that you previously spoke to a Commission staff member regarding the SFI filing requirements relative to your position as a Constable. You now seek an advisory as to the following specific inquiries: 1. Whether you are considered a "public official" or a "public employee" under the Ethics Act; 2. Whether you must file your 2003 calendar year SFI as a former Township employee given that you were employed as a laborer with the Township Road Department; 3. Whether you must file a copy of your SFI with the Township; 4. Whether you must report payments arising out of a negotiated settlement with the Township relating to your employment separation in October 2003, wherein the Township agreed to pay for the continuation of your health insurance benefits until the sum of $8,000 was exhausted; 5. Whether you must report debts for which your spouse is solely liable; 6. Whether you must report a home equity loan used to purchase personal vehicles; 7. Whether you must list as a source of income, either your former employer or the annuity company that paid you an annuity over a three -year period, 2003 being Dispennett, 04 -531 April 21, 2004 Page 2 the third and final year where: (1) the proceeds of an out -of -court settlement paid to you by your former employer were the source of funding for the annuity payments; and (2) both parties agreed that the settlement proceeds were not in the nature of compensatory or punitive damages, but rather "consideration" for agreeing not to proceed to trial; 8. Whether you must list unemployment compensation as income on your SFI; 9. Whether you must have your SFI notarized prior to filing with the Commonwealth; and 10. Whether you must file your SFI by May 1 of each year that you hold public office. 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 IDased 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. The Ethics Act defines the terms "public employee" and "public official" as follows: 65 Pa.C.S. The employee" § 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 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. "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 this Commonwealth 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. (5) § 1102. regulations of the State Ethics Commission similarly define the term "public and set forth the following additional criteria: Dispennett, 04 -531 April 21, 2004 Page 3 (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 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. Dispennett, 04 -531 April 21, 2004 Page 4 (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (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. Having set forth the relevant provisions of the Ethics Act and the Regulations of the State Ethics Commission, your specific inquiries shall now be addressed. In response to your first question, as a Constable, you would be considered a "public official" given that the definition of "public official" includes an elected or appointed official in the executive branch. Confidential Opinion, 92 -008. Therefore, as a Constable, you would be required to file an SFI in accordance with the Ethics Act and the Regulations of the State Ethics Commission. In response to your second question, you have not submitted a copy of a job description for your former position as a laborer with the Township Road Department. However, assuming you were not responsible for taking or recommending official action of a non-ministerial nature with regard to any of the five categories set forth in the Ethics Act's definition of the term "public employee," as a laborer, you would not be subject to the disclosure requirements of the Ethics Act, and you would not be required to file an SFI as a laborer. See, 51 Pa.Code, § 11.1(v)(A). Your third question need not be addressed given the above response to your second question. In response to your fourth question, you would be required to list the name and address of the Township as a direct /indirect source of income if the payments made by the Township for your health benefits met or exceeded the $1,300 threshold of Section 1105(b)(5). You would be required to list the Township since the Township, a governmental body, was the source of income, and the payments arose out of a negotiated settlement with the Township. See, SFI Instructions relating to Block 10. In response to your fifth question, you would not be required to report debts for which your spouse is solely liable. In response to your sixth question, you would not be required to disclose a creditor to whom you are indebted on a home equity loan because mortgages securing Dispennett, 04 -531 April 21, 2004 Page 5 real property which is the principal or secondary residence of the person filing shall not be included. In response to your seventh question, you would be required to list the annuity company as a source of income if the payments made by the annuity company met or exceeded the $1,300 threshold of Section 1105(b)(5). In response to your eighth question, unemployment compensation need not be reported as "income' because the Ethics Act's definition of "income" excludes governmentally mandated payments. In response to your ninth question, the Ethics Act does not require that SFI's be notarized. In response to your final question, as a public official, you would be required to file an SFI no later than May 1 of each year that you hold your public position and of the year after you leave that position. Conclusion: In your capacity as a Constable of Jackson Township, you are to be considered a public official" subject to the Public Official and Employee Ethics Act and the Regulations of the State Ethics Commission. Accordingly, you must file a Statement of Financial Interests each year in which you hold the aforesaid position and the year following your termination of such service. If you have not already done so, a Statement of Financial Interests must be filed within 30 days of this Advice. 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. Sincerely, Vincent J. Dopko Chief Counsel