HomeMy WebLinkAbout79-560 KellarTO:
FACTS:
DISCUSSION:
STATE ETHICS COMMISSION
P. 0. Box 1179
Harrisburg, PA 17108
ADVICE OF CHIEF COUNSEL
December 19, 1979
James G. Kellar
34 South Fifth Street
Allentown, PA 18101
RE: Substitute Solicitors
Advice Number P9 560
On November 28, 1979, James G. Kellar, Esquire,
wrote this Commission that he acted as solicitor to a
zoning board on a one -time basis, without compensation,
when the regular solicitor had to disqualify himself
because of a conflict of interest.
He performed similar services without compensation
where a solicitor to a township board of commissioners
had to disqualify himself because of a conflict of interest.
He inquired, "Am I correct in assuming that because
I act specially as solicitor for the Board of Commissioners
[and zoning hearing board] without compensation that I
am not barred from appearing before that board of commis-
sioners land zoning hearing board] for any period of
time in the future?
The issue is whether an attorney who temporarily
acts as solicitor is considered to be a public employee
or public official by reason of that temporary position.
Neither the term "public official ", nor the term
"public employee ", as set forth in S2 of the Statute
appear to apply to an individual who fills in for the
regular officer or public employee at one particular
meeting. This fact situation is not one involving an
end of the term appointment, or an ongoing relationship.
While the fact of non - compensation precludes any determina-
tion that Mr. kellar acted as a public employee or
compensated public official, the Commission does not
find it necessary to require non - compensation in order
to be excluded from coverage under the Act.
ADVICE OF CHIEF COUNSEL
PAGE 2
DRM /lm -2
We note in these facts that a public official or
public employee recognized the conflict of interest,
and stepped aside.
CONCLUSION:
A person who temporarily acts as a solicitor,
because the regular solicitor had to disqualify himself
because of a conflict of interest, is not a public
official or public employee under the State Ethics Act,
and is not subject to the S3 (e) of the Act.
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.
A personal appearance before the Commission and a
formal opinion will be issued upon your request, if you
feel this reply does not suffice.
This letter is a public record and will be made
available as such.
DAVID RITTENHOUSE MORRISON
Chief Counsel