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HomeMy WebLinkAbout06-553 CrowJohn R. Crow 230 Chestnut Street Meadville, PA 16335 Dear Mr. Crow: ADVICE OF COUNSEL May 9, 2006 06 -553 This responds to your letter of April 5, 2006, by which you requested advice from the State Ethics Commission. Issue: Whether the financial disclosure provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §§ 1104 -1105, would require a filer to report information pertaining investments solely held in the filer's spouse's name. Facts: You are currently employed as a Solid Waste Supervisor with the Pennsylvania Department of Environmental Protection ( "DEP "). You have submitted a copy of your job description, which is incorporated herein by reference. Your spouse is employed by Westminster Place Partnership ( "Westminster "), a commercial real estate development company. The principals of Westminster have created a new commercial real estate company known as Westminster Development LLC ( "Westminster Development "), in which your spouse purchased one -half of one share. You state that your spouse paid for the investment with her salary, which investment is entirely in her name. You further state that none of the commercial real estate projects conducted by Westminster or Westminster Development have involved any waste - related businesses and neither Westminster nor Westminster Development has been involved in any investigation or action taken by DEP's Waste Management Program. Based upon the foregoing facts, you pose the following specific inquiries: (1) Whether you are required to report information pertaining to your spouse's partial share in Westminster Development; and (2) Whether you are required to report your wife's Roth IRA with Ameritrade. Crow, 06 -553 May 9, 2006 Page 2 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. As a Solid Waste Supervisor for DEP, you are a public employee as that term is defined in the Ethics Act, and hence you are subject to the financial disclosure requirements of the Ethics Act. Section 1104 of the Ethics Act provides, in pertinent part: §1104. Statement of financial interests required to be filed (a) Public official or public employee. - -Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. §1104 (a). Section 1105 of the Ethics Act provides 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: (1) Name, address and public position. (2) Occupation or profession. Crow, 06 -553 May 9, 2006 Page 3 (3) Any direct or indirect interest in any real estate which was sold or leased to the Commonwealth, any of its agencies or political subdivisions or purchased or leased from the Commonwealth, any of its agencies or political subdivisions or which was the subject of any condemnation proceedings by the Commonwealth, any of its agencies or political subdivisions. (4) The name and address of each creditor to whom is owed in excess of $6,500 and the interest rate thereon. However, loans or credit extended between members of the immediate family and mortgages securing real property which is the principal or secondary residence of the person filing shall not be included. (5) The name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges. (6) The name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift. This paragraph shall not apply to a gift or gifts received from a spouse, parent, parent by marriage, sibling, child, grandchild, other family member or friend when the circumstances make it clear that the motivation for the action was a personal or family relationship. However, for the purposes of this paragraph, the term "friend" shall not include a registered lobbyist or an employee of a registered lobbyist. (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. (8) Any office, directorship or employment of any nature whatsoever in any business entity. (9) Any financial interest in any legal entity engaged in business for profit. (10) The identity of any financial interest in a business with which the reporting person is or has been associated in the preceding calendar year which has been transferred to a member of the reporting person's immediate family. (c) Reporting amounts. -- Except where an amount is Crow, 06 -553 May 9, 2006 Page 4 required to be reported pursuant to subsection (b)(6) and (7), the statement of financial interests need not include specific amounts for the items required to be listed. (d) Cost -of- living adjustments. - -On a biennial basis the commission shall review the dollar amounts set forth in this section and may increase these amounts to such rates as are deemed reasonable for assuring appropriate disclosure. The commission shall publish any such adjusted threshold amounts in the Pennsylvania Bulletin. 65 Pa.C.S. §1105. In applying Section 1105 to the questions that you have posed, you would not be required to report your spouses's partial share in Westminster Development or her Roth IRA with Ameritrade conditioned upon the assumption that those investments are in her name only. Denoncourt v. State Ethics Commission, 470 A.2d 945 (Pa 1983). 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 Solid Waste Supervisor with the Pennsylvania Department of Environmental Protection ( "DEP "), you are a public employee subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. You would not be required to report your spouses's partial share in Westminster Development LLC or her Roth IRA with Ameritrade conditioned upon the assumption that those investments are in her name only. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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