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HomeMy WebLinkAbout90-512 KremerJudge I. Raymond Kremer Court of Common Pleas Judge's Chambers 604 City Hall Philadelphia, PA 19107 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 20, 1990 • 90 -512 Re: Public Employee /Official, FIS, Judicial Branch, Judge Dear Judge Kremer: This responds to your letter of January 8, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether a member of the judiciary is to be considered a "public employee" or "public official" under the State Ethics Law, and therefore, required to comply with the financial reporting and disclosure provisions ofL th' State Ethics Law. Facts: You inquire as to whether judges must file a Statement of Financial Interests under Act 9 of 1989 which amends Act 170 of 1978. After noting that the General Assembly continued to define "public official" to include officials in the Judicial Branch, you reference the Pennsylvania Supreme Court ruling that such filing was not required under Act 170 of 1978. You conclude by requesting the position of the State Ethics Commission on this matter. The primary question to be answered is whether a member of the judiciary is to be considered a "public official" or "public employee" as that term is defined in the State Ethics Law: Section 2. 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 the State or any political subdivi- sion thereof, provided that it shall not in- clude members of advisory boards that have no Mr. I. Raymond Kremer Page 2 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. "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; (2) administering or monitoring grants or subsidies 1 (3) planning or zoning; (4) inspecting, licensing, regulating or auliting any person; or (5) any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. The issue of whether members of the Judicial Branch are . required to file Statements of Financial Interests has been addressed by the Pennsylvania Supreme Court in Kremer v. State Ethics Commission, 503 Pa. 358, 469 A.2d 593 (1983) wherein the court held as follows: We, now, hold. that (the financial . disclosure provisions of the Ethics Law infringe on our power to supervise courts . and are, therefore, unconstitutional as . applied in the instant °case. Pursuant to our supervisory power, we have established a Code of Judicial Conduct applicable to judges, which rules contain detailed provisions designated to prevent conflicts of interests, financial and otHerwise. Where judges are involved these rules advance the Mr. 1. Raymond Kremer Page 3 0 interests that the Ethics Commission seeks to serve through application ofjthf Ethics Law. If further refinement is required, it must be accomplished through rules promulgated by this Court and not by legislative enactment. Id. 595, 596. See also Waiert v. State Ethics Commission, 491 Pa. 255, 420 A.2d 439 (1980). Although the definition of "public official" has been amended in Act 9 of 1989, such amendments are not material relative to the inquiry herein. The !relevant portions of the definition of "public official" havejjreexi�aained unchanged under Act 9 of 1989. Since the aforecited decitaions have held that the filing requirements of the Ethics Law as it relates to public officials /employees have no application to judges, we conclude that judges are not to be considered public officials /employees as those terms are defined in the State Ethics Law. Conclusion: Judges are not to be considered public officials /employees as defined in the Ethics Law and accordingly, would not be subject to the reporting and disclosure requirements of the State Ethics Law and need not file Statements of Financial Interests. t Pursuant to Section 7(9)(ii), 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, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, Vincent . Dopko, Chief Counsel