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HomeMy WebLinkAbout84-620A ThauSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 16, 1984 Mr. Felix Thau 1244 Barley Corn Square Harrisburg, PA 17112 Re: Attorney III, Liquor Control Board, Public Employee Dear Mr. Thau: 84 - 6201 This responds to your letter of August 14, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether in your capacity as an Attorney III with the Liquor Control Board, hereinafter, the LCB, you are to be considered a "public employee" as that term is defined in the Ethics Act, and therefore, whether you are required to file a Statement of Financial Interests pursuant to the Ethics Act. Facts: You indicate that you do not believe that your activities and functions fall within the purview of the definition of "public employee" as that phrase is defined in the State Ethics Act and the regulations of this Commission. In order to review the question presented, we will briefly outline the duties and responsibilities associated with your position, and as contained in your job description and the classification specifications for this position. Your duties and responsibilities, as set forth in these two documents which are incorporated herein by reference, include the following responsibilities and functions: 1. You review hearing examiner reports from hearings for legality and sufficiency of evidence and prepare written synopsis of same with recommendations to the Assistant Chief Counsel and /or Chief Counsel of the LCB. 2. You review proposed citations for legal sufficiency and make recommendations on same to the Assistant Chief Counsel. 3. You review proposed regulations for legal sufficiency and propriety and you make formal written recommendations on same. 4. You advise various staff on legal interpretations and the proper course of action by way of written and /or verbal communications. Mr. Felix Thau October 16, 1984 Page 2 5. You represent the Board at citation and licensing hearings and before the Civil Service Commission on hearings and appeals. 6. You prepare complex legal memorandum to present the Board's legal position and you assist in complex litigation as required. However, you believe that as an attorney you are exempt from the provisions of the State Ethics Act because, as you say in your letter of August 23, 1984, "the Supreme Court of Pennsylvania has exclusive powers to govern the conduct and discipline of attorneys." In this argument you rely upon the Commonwealth Court ruling as set forth in Ballou v. State Ethics Commission, 424 A.2d 983, 56 Pa. Cmwlth. 240 (1981). You recognize that the Supreme Court reviewed the conclusions the Commonwealth Court reached in Ballou, as cited above, but you argue that the Commonwealth Court's ruling should be applicable here and should prevail in its reasoning, notwithstanding, the fact that the Supreme Court's ruling was based upon other, statutory and non - constitutional, grounds. For the Supreme Court's ruling in the Ballou v. State Ethics Commission case, see 496 Pa. 127, 436 A.2d 186 (1981). We should also note that for the years 1980 and 1982 you did file Statements of Financial Interests in accordance with the requirements of the State Ethics Act and the directives of the Office of Administration, Bureau of Personnel. Nonetheless, you have, for the year 1984, as of 8/13/84, executed a "appeal form" from the determination that you are required to file a Statement of Financial Interests in order to place your position and your arguments before the State Ethics Commission for review. Discussion: As set forth above, the question to be answered here is clear. Specifically, are you, in your capacity as an Attorney III serving with the LCB to be considered a "public employee" as those terms are defined in the State Ethics Act and the regulations of the Commission as follows: Section 2. 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; (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 minimus nature on the interests of any person. Mr. Felix Thau October 16, 1984 Page 3 "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. Section 1.1. Definitions. Public employee - -- (i) The term includes any individual: (A) who is employed by the Commonwealth or a political subdivision and who is responsible for taking or recommending official action of a nonministerial nature with regard to: (I) contracting or procurement; (II) administering or monitoring grants or subsidies; (III) planning or zoning; (IV) inspecting, licensing, regulating, or auditing any person; or (V) any other activity where the official action has greater than a de minimis economic impact; and (B) who meets the criteria of either subclause (I) or (II): (I) The individual is: ( -a -) a person who normally performs his responsibility in the field without on -site supervision; ( -b -) the immediate supervisor of a person who normally performs his responsibility in the field without on -site supervision; or ( -c -) the supervisor of any highest level field office. (II) The individual is a person: Mr. Felix Thau October 16, 1984 Page 4 ( -a -) who: ( -1 -) has the authority to make final decisions; ( -2 -) has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions; ( -3 -) prepares or supervises the preparation of final recommendations; or ( -4 -) makes the final technical recommendations; and ( -b -) whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization. (ii) 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. (iii) Persons in the positions listed below are generally considered public employees. (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 before the public. Mr. Felix Thau October 16, 1984 Page 5 (D) solictors ,engineers, managers, and secretary - treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, housing and building inspectors, 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 business managers and principals. (iv) Persons in the positions listed below are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, 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 1.1. We must review the question you present under these provisions of the statute and the regulations of the Commission in light of your duties and obligations as described in your request for advice and /or appeal, the operate. Our inquiry necessarily focuses on the job itself and not on the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying a position may carry out those functions. See McClure, 83 -001; Phillips, 82 -008, affirmed on appeal, Pa. Cmwlth. , 470 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Also, in reviewing your question, the Commonwealth Court in its ruling in Phillips, supra, at page 661, directs us to construe coverage of the Ethics Act broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Act should be narrowly construed. Based upon this directive and reviewing the definition of "public employee" in the statute and the regulations and opinions of this Commission, in light of your job functions and the information available to us, we are led to the conclusion that while you serve in this capacity, you are a "public employee" subject to the financial reporting and disclosure requirements of the State Ethics Act. Further detail on our analysis follows. Mr. Felix Thau October 16, 1984 Page 6 It is clear that in your capacity as an Attorney III, you have the ability to recommend official action with respect to subparagraphs (1), (4) and (5) within the definition of "public employee" as set forth in the Ethics Act, 65 P.S. 402. Specifically, your power to make recommendations regarding hearing examiner reports, proposed citations, and regulations are clearly other than ministerial. In addition, your ability to represent the Board at citation and licensing hearings and at civil service hearings and appeals in addition to your representation of the LCB in litigation, in general, represent activies in which you exercise an authority to take or recommend official action within the confines of the definition of "public employee" as set foth in the Ethics Act. These activities fall within the definition of public employee as contained in the regulations of the Commission 51 Pa. Code (i)(A)(I), (IV),and (V) and (8)(II)(a)(2) and (3). Under these circumstances and given your duties and responsibilities as outlined above, we must conclude that you are a "public employee" as that term is defined in the State Ethics Act. While from the above discussion it is clear that you are a "public employee" as that term is defined in the State Ethics Act, you seek to secure a ruling that you are "exempt" from the otherwise applicable provisions of the State Ethics Act because you are admitted to the practice of law in Pennsylvania. In this respect you argue that as a member of the legal profession, you are to be regulated only by the Supreme Court of Pennsylvania. You point to the Commonwealth Court's ruling in Ballou, as outlined above for support. We believe, however, that the Supreme Court's ruling in this case, was limited to and exempted from the statutory definition of "public employee" or "public official" only those persons who serve in the part -time capacity as independent contractors as solicitor(s) with a municipality or other governmental entity. Because the Supreme Court ruled in this matter on narrow, statutory definition grounds, we do not believe that the reasoning set forth in the Commonwealth Court ruling at 424 A.2d 983, 56 Pa. Cmwlth. 240 (1981) is dispositive, persuasive, or is binding with respect to the situation which you present. We recognize that only the Supreme Court has the inherent or exclusive power to govern the admission or discipline of an attorney. However, we are not in a position to declare the provisions of the Ethics Act unconstitutional or to concede that this power of the Supreme Court extends to or is applicable to this situation. No case which you present or argue in your appeal is clearly applicable or mandates the conclusion that the Legislature may not adopt and apply the Ethics Act to full -time employees, such as you, who are otherwise within the definition of "public employee" as set forth in the Ethics Act simply because you are an attorney. Lacking any specific dispositive or applicable case, we conclude that your argument and appeal is to be rejected. Accordingly, as a full -time public employee who falls within the definition of "public employee ", we are bound to apply the provisions of the State Ethics Act to you and require that you file a Statement of Financial Interests in accordance with that statute. Mr. Felix Thau October 16, 1984 Page 7 Conclusion: Based upon the above discussion, we conclude that you are to be considered a "public employee" in your capacity as an Attorney III with the LCB. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the position outlined above and for the year following your termination of this service. As outlined above, we find that you are not exempt from the requirement of filing a Statement of Financial Interests under any applicable and diapositive precedent or on any constitutional arguments that you have raised. If you have not already done so, a Statement of Finanical Interests must be filed within 15 days of this Advice. This Statement of Financial Interests would report information of the prior calendar year. Please file the original of such a Statement with this Commission to insure compliance with this Advice, provide the yellow copy to your Personnel Office and retain the green copy for your records. 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 full Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Enclosure: SFI S SC/ rdp cc: Daniel Pennick, Chairman Joseph Phillip, Director Sincerely, andra S. Chr General Couns -1 tianson