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HomeMy WebLinkAbout11-525 Torrence ADVICE OF COUNSEL May 18, 2011 Albert A. Torrence, Esquire Fourth Street Professional Building 640 Fourth Street Beaver, PA 15009-2107 11-525 Dear Mr. Torrence: This responds to your letter dated April 1, 2011, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, in your capacity as: (1) a part-time Assistant District Attorney with the Office of the District Attorney of Beaver County; or (2) the Solicitor for the Beaver County Controller, you would be considered a public official or public employee subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are an appointed part-time Assistant District Attorney with the Office of the District Attorney (“District Attorney’s Office”) of Beaver County (“County”), in which capacity you are responsible for handling pleas and sentences, preliminary hearings, pre- trial conferences, and occasional trials. You state that you have no responsibilities for budgeting or for the administrative functions of the District Attorney’s Office and that you do not advise the District Attorney in any way with respect to any administrative issues, including those involving contracts or procurement. For serving as a part-time Assistant District Attorney, the County pays you a salary of approximately $24,000 pursuant to a collective bargaining agreement. You state that following your appointment as a part-time Assistant District Attorney, you were asked to serve and were subsequently hired as the Solicitor for the Beaver County Controller (“County Controller”). You state that as Solicitor for the County Controller, you advise the County Controller on routine legal issues as needed. You are paid a flat annual retainer of $6,000 by the County for serving in an at-will capacity as Solicitor for the County Controller. Based upon the above submitted facts, you request an advisory as to your status in the aforesaid capacities. You specifically ask whether you would have a conflict of interest with regard to simultaneously serving as a part-time Assistant District Attorney for the District Attorney’s Office and as the Solicitor for the County Controller. You opine that no Torrence, 11-525 May 18, 2011 Page 2 such conflict of interest would exist based upon your view that in your capacity as a part- time Assistant District Attorney, you are not responsible for taking or recommending official action of a nonministerial nature that would bring you within the definition of “public employee” as set forth in the Ethics Act. 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, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. Because you are already simultaneously serving as a part-time Assistant District Attorney for the District Attorney’s Office and as the Solicitor for the County Controller, this Advice cannot address whether the Ethics Act would preclude such simultaneous service. Therefore, this Advice must necessarily be limited to addressing your status under the Ethics Act in each of the aforesaid positions. It is clear that in your capacity as a part-time Assistant District Attorney for the District Attorney’s Office, you would be considered a public official subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1; Rendell, Opinion 79-007; Lehutsky, Advice 01-528. Because you have not submitted a job description for your position as a part-time Assistant District Attorney, this Advice does not address whether in such position you would also be considered a “public employee” as that term is defined by the Ethics Act. In considering your status under the Ethics Act in your capacity as the Solicitor to the County Controller, you are advised as follows. 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 Solicitor to the County Controller, you would not be considered a “public official” or a “public employee” as those terms are defined by the Ethics Act. See, C.P.C., supra. It is parenthetically noted that all Solicitors are required to file Statements of Financial Interests pursuant to the Ethics Act. 65 Pa.C.S. § 1104(a); Foster, Opinion No. Torrence, 11-525 May 18, 2011 Page 3 98-002; see also, P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999), supra (intent of amendment to Section 404, now Section 1104, of the Ethics Act was to include solicitors who are not employees of the governmental units they serve within the scope of the Ethics Act’s financial disclosure provisions). Therefore, in each of your capacities as an Assistant District Attorney and as Solicitor for the County Controller, you would be required to file Statements of Financial Interests pursuant to the Ethics Act. Lastly, your inquiry has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) you are an appointed part- time Assistant District Attorney with the Office of the District Attorney (“District Attorney’s Office”) of Beaver County (“County”); (2) following your appointment as a part-time Assistant District Attorney, you were asked to serve and were subsequently hired as the Solicitor for the Beaver County Controller (“County Controller”); (3) as Solicitor for the County Controller, you advise the County Controller on routine legal issues as needed; and (4) you are paid a flat annual retainer of $6,000 by the County for serving in an at-will capacity as Solicitor for the County Controller, you are advised as follows. In your capacity as a part-time Assistant District Attorney for the District Attorney’s Office, you would be considered a public official subject to the Ethics Act and the Regulations of the State Ethics Commission. Because you have not submitted a job description for your position as a part-time Assistant District Attorney, this Advice does not address whether in such position you would also be considered a “public employee” as that term is defined by the Ethics Act. In your capacity as the Solicitor to the County Controller, you would not be considered a “public official” or a “public employee” as those terms are defined by the Ethics Act. All Solicitors are required to file Statements of Financial Interests pursuant to the Ethics Act. In each of your capacities as an Assistant District Attorney and as Solicitor for the County Controller, you would be required to file Statements of Financial Interests pursuant to the Ethics Act. Lastly, your inquiry has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, this 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, Torrence, 11-525 May 18, 2011 Page 4 Robin M. Hittie Chief Counsel