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HomeMy WebLinkAbout15-541 Moran ADVICE OF COUNSEL June 26, 2015 Lawrence J. Moran, Sr., Esquire Chief Public Defender Lackawanna County Courthouse 200 North Washington Avenue Scranton, PA 18503 15-541 Dear Mr. Moran: This responds to your letters dated May 1, 2015, and May 12, 2015, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”). Issue: Whether: (1) the Chief Public Defender of Lackawanna County; or (2) part- time or full-time Assistant Public Defenders with the Lackawanna County Office of the Public Defender would be considered public officials/public employees subject to the Public Official and Employee Ethics Act (the "Ethics Act"), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and particularly, the requirements for filing Statements of Financial Interests. Facts: You seek a determination as to whether, in your capacity as the Chief Public Defender of Lackawanna County (“County”), you are subject to the Ethics Act and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. You further seek a determination on behalf of eleven individuals, each of whom is employed as a part-time or full-time Assistant Public Defender with the County Office of the Public Defender (“Public Defender’s Office”), as to whether these Assistant Public Defenders are “public employees” subject to the Ethics Act and in particular, the requirements for filing Statements of Financial Interests pursuant to the Ethics Act. You have submitted a description for the position of Chief Public Defender of the County. The Chief Public Defender directs all legal and administrative functions of the Public Defender’s Office. The duties and responsibilities of the Chief Public Defender include: (1) ensuring that all indigent persons charged with crimes in the County are represented; (2) ensuring that the Public Defender’s Office is adequately and appropriately staffed in order to perform required work efficiently and effectively; (3) supervising legal staff responsible for representing indigent persons; (4) preparing the annual budget proposal for submission and administering the approved departmental budget during the year; and (5) serving as an advisor to the staff attorneys and working with the staff in the preparation and trial of assigned cases. You have further submitted descriptions for the positions of part-time Assistant Public Defender and full-time Assistant Public Defender with the Public Defender’s Moran, 15-541 June 26, 2015 Page 2 Office. Part-time and full-time Assistant Public Defenders provide legal representation to indigent individuals charged with crimes under Pennsylvania law. A part-time Assistant Public Defender provides legal representation to individuals from the preliminary hearing through resolution by plea or trial and sentencing, if necessary, and also functions as a liaison with the staff appellate attorney on all necessary matters. In addition to providing legal representation to individuals from the preliminary hearing through trial and sentencing, a full-time Assistant Public Defender is responsible for providing representation to individuals in various other legal proceedings. You state that County Public Defenders are employees of the County. You state that County Public Defenders are independent counsel, hired by the County Commissioners under authority of statute, for the purpose of providing a criminal defense to individuals eligible for legal services. You further state that County Public Defenders do not represent state government, local municipalities, or political subdivisions, and that they are not classified as “staff attorneys” or “solicitors.” You assert that County Public Defenders are not responsible for taking or recommending official action of a non-ministerial nature that would bring them within the definition of the term “public employee” as set forth in the Ethics Act. It is administratively noted that the Public Defender Act provides that in each county except Philadelphia County, there shall be a public defender who shall be appointed by the board of county commissioners. See, 16 P.S. §§ 9960.3, 9960.4. The position of public defender is an office. See, 16 P.S. § 9960.10. The public defender, with the approval of the appointive body, may provide for as many full-time or part-time assistant public defenders, clerks, investigators, stenographers, and other employees as the public defender may deem necessary to enable the public defender to carry out the duties of the public defender’s office. See, 16 P.S. § 9960.5(a). 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. Section 1104(a) of the Ethics Act provides that each public official/public employee must file a Statement of Financial Interests for the preceding calendar year, each year that the position is held and the year following termination of service in the position: § 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 Moran, 15-541 June 26, 2015 Page 3 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). The term "public official" is defined in the Ethics Act as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102. The Regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria that are used to determine whether the advisory board exception applies: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of moneys, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to expend public funds has a greater than de minimis economic impact on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. Moran, 15-541 June 26, 2015 Page 4 (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. (VII) The body has the power of eminent domain or condemnation. (VIII) The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F) Members of zoning hearing boards and similar quasi-judicial bodies. (G) Members of the public bodies meeting the criteria in paragraph (i)(A). 51 Pa. Code § 11.1. The term “public employee” is defined in the Ethics Act as follows: § 1102. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; Moran, 15-541 June 26, 2015 Page 5 (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. 65 Pa.C.S. § 1102. The Regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommen- dations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. Moran, 15-541 June 26, 2015 Page 6 (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary-treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code § 11.1. The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions "Ministerial action." An action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the person’s own judgment as to the desirability of the action being taken. Moran, 15-541 June 26, 2015 Page 7 "Nonministerial actions." An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa.C.S. § 1102. With regard to your status as the Chief Public Defender of the County, you are advised as follows. In applying the Ethics Act’s definition of the term “public official,” the first portion of the definition provides that a public official is a person who: (1) is elected by the public; (2) is elected or appointed by a governmental body; or (3) is an appointed official in the executive, legislative, or judicial branch of the Commonwealth or a political subdivision of the Commonwealth. Muscalus, Opinion 02-007. The fact that the Chief Public Defender of the County is appointed to office by the County Board of Commissioners satisfies the first portion of the definition and establishes your status as a “public official” subject to the Ethics Act. See, Bucher, Breslin, Merrick & Andrews, Opinion 80-032. In applying the Ethics Act’s definition of the term “public employee,” the necessary conclusion is that as the Chief Public Defender of the County, you are a “public employee” subject to the Ethics Act. As the Chief Public Defender, you have the ability to take or recommend official action of a nonministerial nature with respect to subparagraph (5) within the definition of “public employee” as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, your authority to: (1) prepare the annual budget proposal for submission and administer the approved departmental budget during the year; and (2) provide, with the approval of the County Board of Commissioners, for as many full-time or part-time Assistant Public Defenders, clerks, investigators, stenographers, and other employees as you may deem necessary to enable you to carry out the duties of the Public Defender’s Office, would be sufficient to establish your status as a “public employee” subject to the Ethics Act. Based upon the above, you are advised that you are a "public official/public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission, and you are required to file Statements of Financial Interests pursuant to the Ethics Act. With regard to the status of the Assistant Public Defenders on whose behalf you have inquired, you are advised as follows. In applying the definition of the term "public employee" and the related regulatory criteria to the submitted facts as to the duties of the positions of part-time Assistant Public Defender and full-time Assistant Public Defender with the Public Defender’s Office, the necessary conclusion is that the part-time and full-time Assistant Public Defenders on whose behalf you have inquired are not to be considered “public employees” as that term is defined in the Ethics Act. Cf., Bucher, Breslin, Merrick & Andrews, supra; Maynard, Advice 83-607. Based upon the submitted facts, the aforesaid Assistant Public Defenders are not responsible for taking or recommending official action of a non-ministerial nature with regard to any of the five categories set forth in the Ethics Act’s definition of the term “public employee.” Thus, the aforesaid Assistant Public Defenders are not subject to the disclosure requirements of the Ethics Act, and they are not required to file Statements of Financial Interests. Conclusion: As the Chief Public Defender of Lackawanna County (“County”), you are a “public official/public employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., and particularly, the requirements for filing Statements of Financial Interests. Based upon the submitted facts, the part-time Moran, 15-541 June 26, 2015 Page 8 and full-time Assistant Public Defenders with the County Office of the Public Defender on whose behalf you have inquired are not to be considered “public employees” as that term is defined in the Ethics Act. Accordingly, the aforesaid Assistant Public Defenders are not subject to the disclosure requirements of the Ethics Act, and they are not required to file Statements of Financial Interests. 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