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Home My WebLink About10-576 ADVICE OF COUNSEL May 5, 2010 Tiffany M. Cartwright, Esquire Smith Cartwright LLP 3009 Market Street Camp Hill, PA 17011 10-576 Dear Ms. Cartwright: This responds to your letter dated April 1, 2010, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, as a partner of a law firm that serves as solicitor for a township, you would be considered a public official/public employee subject to Sections 1103(a) and 1103(f) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. §§ 1103(a), (f), where: (1) the township board of supervisors appointed the law firm to serve as interim solicitor for the township on October 5, 2009; (2) the township board of supervisors appointed the law firm to serve as the township’s solicitor at the board’s organization meeting on January 4, 2010; (3) you have attended regular and special meetings of the board of supervisors and rendered legal advice to the board of supervisors as solicitor since October 5, 2009; (4) the law firm invoices the township on a monthly basis for services rendered to the township as solicitor; (5) the law firm bills the township an hourly rate plus expenses incurred in rendering legal services; and (6) the township does not withhold taxes from invoice payments, and no law firm attorneys participate in any benefits offered to township employees such as pension plans, workers’ compensation insurance, medical benefits, or paid leave. Facts: You have requested an advisory from the Pennsylvania State Ethics Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. You are a partner in the law firm of Smith Cartwright LLP (“the Law Firm”). On October 5, 2009, the Board of Supervisors (“Board”) of Dickinson Township (“Township”), Cumberland County, Pennsylvania, appointed the Law Firm to serve as interim Solicitor for the Township. The Board appointed the Law Firm to serve as the Township’s Solicitor at the Board’s organization meeting on January 4, 2010. You state that you have attended regular and special meetings of the Board and rendered legal advice to the Board as Solicitor since October 5, 2009. You state that the Law Firm invoices the Township on a monthly basis for services rendered to the Township as Solicitor. The Law Firm bills the Township an hourly rate plus expenses incurred in rendering legal services, such as postage, copying, court filing fees, and mileage. You state that the Township does not withhold Cartwright, 10-576 May 5, 2010 Page 2 taxes from such invoice payments and that no Law Firm attorneys participate in any benefits offered to Township employees such as pension plans, workers’ compensation insurance, medical benefits, or paid leave. Based upon the above submitted facts, you ask whether, as the partner in the Law Firm who provides Solicitor services to the Township, you would be considered a public official/public employee subject to Sections 1103(a) and 1103(f) of the Ethics Act, 65 Pa.C.S. §§ 1103(a), (f). 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. It is further initially noted that this Advice is limited to addressing the narrow question posed. In 1997 and 1999, the status of Solicitors under the Ethics Act was clarified by certain rulings of the Commonwealth Court of Pennsylvania and the Supreme Court of Pennsylvania. In P.J.S. v. State Ethics Commission, 697 A.2d 286 (Pa. Cmwlth. 1997), the Commonwealth Court of Pennsylvania held, inter alia, that a Solicitor 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. The Supreme Court of Pennsylvania subsequently affirmed the Commonwealth Court's decision in the P.J.S. case. P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999). However, in C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Cmwlth. 1997), alloc. den., 550 Pa. 686, 704 A.2d 640 (1997), based upon an analysis of prior precedents, the Commonwealth Court of Pennsylvania determined that a municipal Solicitor who is retained by–as opposed to being an employee of– the municipality is not a "public official” or "public employee" as those terms are defined in the Ethics Act. In the instant matter, based upon the submitted facts, you are advised that in your capacity as the partner in the Law Firm who provides Solicitor services to the Township, you would not be considered a “public employee” subject to Sections 1103(a) and 1103(f) of the Ethics Act, 65 Pa.C.S. §§ 1103(a), (f). See, C.P.C., supra. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) you are a partner in the law firm of Smith Cartwright LLP (“the Law Firm”); (2) on October 5, 2009, the Board of Supervisors (“Board”) of Dickinson Township (“Township”), Cumberland County, Pennsylvania, appointed the Law Firm to serve as interim Solicitor for the Township; (3) the Board appointed the Law Firm to serve as the Township’s Solicitor at the Board’s organization meeting on January 4, 2010; (4) you have attended regular and special meetings of the Board and rendered legal advice to the Board as Solicitor since October 5, 2009; (5) the Law Firm invoices the Township on a monthly basis for services rendered to the Township as Solicitor; (6) the Law Firm bills the Township an hourly rate plus expenses incurred in rendering legal services; and (7) the Township does not withhold taxes from such invoice payments, and no Law Firm attorneys participate in any benefits offered to Township employees such as pension plans, workers’ Cartwright, 10-576 May 5, 2010 Page 3 compensation insurance, medical benefits, or paid leave, you are advised that in your capacity as the partner in the Law Firm who provides Solicitor services to the Township, you would not be considered a “public employee” subject to Sections 1103(a) and 1103(f) of the Ethics Act, 65 Pa.C.S. §§ 1103(a), (f). Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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