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HomeMy WebLinkAbout05-606 PalcseyJohn R. Palcsey 108 Fifth Street Dravosburg, PA 15034 ADVICE OF COUNSEL December 15, 2005 05 -606 Re: Public Official; Emergency Management Coordinator; Borough; Statement of Financial Interests. Dear Mr. Palcsey: This responds to your letter dated November 11, 2005, by which you requested advice from the State Ethics Commission. Issue: Whether as an emergency management coordinator for a borough, you would be considered a "public official" subject to the 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. Facts: You are the Emergency Coordinator for the Borough of Dravosburg ("Borough "). It is administratively noted that pursuant to the Emergency Management Services ode, 35 Pa.C.S. § 7101 et seq, each political subdivision of the Commonwealth is required to establish a local emergency management organization that is responsible for, inter alia, emergency management and response and recovery within the territorial limits of the political subdivision. 35 Pa.C.S. § 7501(a). The local emergency management organization is required to have a coordinator who is responsible for the planning, administration and operation of the local organization subject to the direction and control of the executive officer or governing body. 35 Pa.C.S. § § 7501(a), 7502(a). At the local level, the coordinator is appointed by the Governor. 53 Pa.C.S. § 7502(c). You state that in your position, you have no spending authority whatsoever. You further state that all expenditures are the responsibility of Borough Council. Based upon the facts that you have submitted, you seek an exemption from the State Ethics Commission as to the requirement for filing Statements 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. Palcsey, 05 -606 December 15, 2005 Page 2 The term "public official" is defined in the Ethics Act as follows: § 1102. 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 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. 65 Pa. C. S. § 1102. The regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria that are used to determine whether the advisory board exception applies: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of monies, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (1) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (11) The body exercises a basic power of government and performs essential governmental functions. (111) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. Palcsey, 05 -606 December 15, 2005 Page 3 (VII) The body has the power of eminent domain or condemnation. (VIII)The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F) Members of zoning hearing boards and similar quasi - judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). 51 Pa. Code § 11.1. The term "political subdivision" is specifically defined in the Ethics Act as follows. § 1102. Definitions "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 65 Pa.C.S. § 1102. See also, 51 Pa. Code § 11.1 (definition of "political subdivision "). Because status as a public official depends in part upon the nature of the entity served, it is noted at the outset that the local emergency management organization that you as an emergency management coordinator serve is a political subdivision because it is an entity or body organized by another political subdivision, the Borough, and therefore, is itself a "political subdivision" as defined in the Ethics Act. Eiben, Opinion 04 -002. Having determined that the local emergency management organization is a political subdivision as defined by the Ethics Act, the next issue is whether as the Palcsey, 05 -606 December 15, 2005 Page 4 Emergency Management Coordinator for the local emergency management organization, you are a "public official" subject to the Ethics Act. In applying the Ethics Act's definition of "public official," the first portion of the definition provides that a public official is a person who is: (1) elected by the public; (2) elected or appointed by a governmental body; or (3) an appointed official in the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02 -007. When the first portion of the definition is met, one's status as a public official subject to the Ethics Act is established, unless the exclusion for members of purely advisory boards is applicable. 65 Pa.C.S. § 1102. As an Emergency Management Coordinator for the Borough, you clearly fall within the third category above because you are an appointed official in a political subdivision. Because you are not a member of an advisory board, the exclusion noted above would not apply. Based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, the necessary conclusion is that you are a "public official" subject to the financial reporting and disclosure requirements of the Ethics Act. Conclusion: In your capacity as an Emergency Management Coordinator of the Borough of Dravosburg, 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 requester 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