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Home My WebLink About14-562 Zech ADVICE OF COUNSEL December 17, 2014 Alan E. Cech, Esquire 2367 Trimble Road Pittsburgh, PA 15237 14-562 Dear Mr. Cech: This responds to your letter dated November 13, 2014, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an attorney serving in the position of solicitor for a municipal authority with regard to continuing to serve in such position if he would form a partnership to practice law with an attorney who is a member and president of the municipal authority’s board of directors. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are the Solicitor for the Northland Public Library Authority (“Authority”), which was established by five municipalities in Allegheny County, Pennsylvania. The Authority Board of Directors (“Authority Board”) consists of seven Members. As Solicitor, you receive $375.00 per month for rendering legal services to the Authority. John W. Murtagh, Jr., Esquire (“Mr. Murtagh”) is a Member and President of the Authority Board. Mr. Murtagh is licensed to practice law in the Commonwealth, and he maintains offices in Allegheny County and Butler County. You and Mr. Murtagh have recently engaged in preliminary discussions regarding the formation of a partnership to practice law. You state that if you and Mr. Murtagh would proceed with the formation of a legal partnership, you would so notify the Authority Board. You additionally state that Mr. Murtagh would abstain from any vote that would affect you financially. Based upon the above submitted facts, you ask whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to continuing to serve as the Solicitor for the Authority if you and Mr. Murtagh would form a partnership to practice law. 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 Cech, 14-562 December 17, 2014 Page 2 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. In responding to your inquiry, the threshold question to be addressed is whether, in your capacity as the Solicitor for the Authority, you would be considered a “public employee” subject to the Ethics Act. 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 the conflict of interest provisions of the Ethics Act do apply to solicitors who are public employees and are not just retained by their client municipalities. 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 and therefore is not subject to the conflict of interest provisions of the Ethics Act. In the instant matter, based upon the submitted facts, you are advised that in your capacity as the Solicitor for the Authority, you are not a “public employee” subject to the Ethics Act, and therefore you are not subject to the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). However, Section 1103(b) of the Ethics Act applies to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. In response to your specific question, you are advised that the Ethics Act would not prohibit you from continuing to serve as the Solicitor for the Authority if you and Mr. Murtagh would form a partnership to practice law. 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 98- 002; see also, P.J.S., 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). Lastly, 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. Specifically not addressed herein is the applicability of the Municipality Authorities Act or the Rules of Professional Conduct. Conclusion: Based upon the submitted facts that: (1) you are the Solicitor for the Northland Public Library Authority (“Authority”), which was established by five municipalities in Allegheny County, Pennsylvania; (2) the Authority Board of Directors Cech, 14-562 December 17, 2014 Page 3 (“Authority Board”) consists of seven Members; (3) as Solicitor, you receive $375.00 per month for rendering legal services to the Authority; (4) John W. Murtagh, Jr., Esquire (“Mr. Murtagh”) is a Member and President of the Authority Board; (5) Mr. Murtagh is licensed to practice law in the Commonwealth, and he maintains offices in Allegheny County and Butler County; (6) you and Mr. Murtagh have recently engaged in preliminary discussions regarding the formation of a partnership to practice law; (7) if you and Mr. Murtagh would proceed with the formation of a legal partnership, you would so notify the Authority Board; and (8) Mr. Murtagh would abstain from any vote that would affect you financially, you are advised as follows. In your capacity as the Solicitor for the Authority, you are not a “public employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and therefore you are not subject to the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). Section 1103(b) of the Ethics Act applies to everyone. The Ethics Act would not prohibit you from continuing to serve as the Solicitor for the Authority if you and Mr. Murtagh would form a partnership to practice law. All Solicitors are required to file Statements of Financial Interests pursuant to the Ethics Act. 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