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HomeMy WebLinkAbout08-507 SobelJohn A. Sobel, IV, Esquire Sobel & Collins 218 South Second Street Clearfield, PA 16830 Dear Mr. Sobel: ADVICE OF COUNSEL January 23, 2008 08 -507 This responds to your letter of December 12, 2007, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would present any prohibitions or restrictions upon a county commissioner with regard to simultaneously serving as solicitor for township(s) or borough(s) located in or about the county. Facts: As a newly - elected Commissioner for Clearfield County ( "County "), you request an advisory from the State Ethics Commission based upon the following submitted facts. You are an attorney licensed to practice law in the Commonwealth of Pennsylvania. You currently serve as Solicitor for several small townships and boroughs located in and about the County. You state that you wish to maintain a part -time law practice while serving as a County Commissioner. You ask whether the Ethics Act would permit you to continue to represent the aforesaid townships and boroughs while simultaneously serving as a County Commissioner. 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. Sobel, 08 -507 January 23, 2008 Page 2 Preliminarily, it is noted that the submitted facts do not indicate whether, in your capacity as Solicitor for the aforesaid municipalities, you are retained by or are an employee of the various municipalities. This advisory does not address whether, in your capacity as Solicitor for any particular municipality, you are a "public employee" as that term is defined by the Ethics Act. See, P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999) (holding thatolicitor who is employed by a governmental body and not just on retainer would be considered a "public employee" subject to the provisions of the Ethics Act); cf., C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Cmwlth. 1997), alloc. den., 550 Pa. 686, 704 A.2d 640 (1997) (holding that a Solicitor who is retained by – as opposed to being an employee of – a governmental body would not be considered a "public official" or "public employee" as those terms are defined by the Ethics Act). (It is noted that regardless of whether you would be retained or employed as a Solicitor, you would be required to file Statements of Financial Interests pursuant to the Ethics Act, both in your capacity as a Solicitor and as a County Commissioner. See, 65 Pa.C.S. § 1104(a); P.J.S. v. State Ethics Commission, supra; Foster, Opinion 98 -002). Upon taking office as a County Commissioner, you would become a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict. —Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), (j). The following terms are defined in the Ethics Act as follows: § 1102. Definitions Sobel, 08 -507 January 23, 2008 Page 3 "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The above statutory definition of "conflict" or "conflict of interest" contains two exclusions, referred to herein as the "de minimis" exclusion and the "class /subclass exclusion." The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburq, Order 900. In order for the class /subclass exclusion to apply, two criteria must be met: (1) the affected public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class /subclass. 65 Pa.C.S. § 1102; see, Sobel, 08 -507 January 23, 2008 Page 4 Kablack, Opinion 02 -003; Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90- 017); Rubenstein, Opinion 01 -007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual /business in question and the other members of the class /subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. In each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official /public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Pavlovic, Opinion 02 -005. In applying the above provisions of the Ethics Act to your inquiry, you are advised that a public official /public employee generally would have a conflict of interest in his official capacity in matters involving a business with which he is associated and /or private clients. Kannebecker, Opinion 92 -010; Miller, Opinion 89 -024. You are further advised that although a pecuniary benefit flowing solely to a governmental body would not form the basis for a conflict of interest under Section 1103(a ) of the Ethics Act (see, Confidential Opinion, 01 -005; McCarrier, Opinion 98- 005; Warso, Order 974), where a governmental body or political subdivision would be a client of the public official /public employee, or a client of a business with which the public official /public employee is associated, such client relationship itself would form the basis for a conflict of interest in matters involving the client. Kannebecker, supra; cf., Brueninq, Advice 02 -606. Having established the above general principles, your specific inquiry shall be addressed. In considering the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. There does not appear to be any statutorily - declared incompatibility precluding simultaneous service in the positions of County Commissioner and Solicitor for a township or borough. Furthermore, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude your simultaneous service as a County Commissioner and Solicitor for a township or borough. See, McCain, Opinion 02 -009 (holding that where simultaneous service would place the public official in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict). Absent a statutorily- declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act itself would not preclude you from simultaneously serving in the aforesaid positions, but in each instance of a conflict of interest, you would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) as set forth above. You are advised that pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before the County Board of Commissioners that would financially impact you, your law firm, or your law firm's clients, including but not limited to townships or boroughs for which you would serve as Solicitor, unless the de minimis exclusion or the class /subclass exclusion to the statutory definition of "conflict" or "conflict of interest" would be applicable. As noted above, in each instance of a Sobel, 08 -507 January 23, 2008 Page 5 conflict of interest, you would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Rules of Professional Conduct. Conclusion: Upon taking office as a Commissioner for Clearfield County ("County "), you would become a "public official" subject to the provisions of the Public Official and Employee Ethics Act "Ethics Act "), 65 Pa.C.S. § 1101 et seq. You may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a County Commissioner and Solicitor for township(s) or borough(s) located in or about the County, subject to the restrictions, conditions and qualifications set forth above. Your law firm is a business with which you are associated. Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before the County Board of Commissioners that would financially impact you, your law firm, or your law firm's clients, including but not limited to townships or boroughs for which you would serve as Solicitor, unless the de minimis exclusion or the class /subclass exclusion to the statutory definition of "conflict" or "conflict of interest" would be applicable. In each instance of a conflict of interest, you would be required to abstain fully from participation and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Lastly, the propriety of the proposed course of 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, Robin M. Hittie Chief Counsel