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Home My WebLink About17-566 KleinR� STATE ETHICS COMMISSION 309 FINANCE {BUILDING PO. BOX 31470 HARRISBURG, PA 17108-1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL September 21, 2017 To the Requester: Mr. Robert Klein, Esquire 17 -566 Dear Mr. Klein: This responds to your letter dated August 18, 2017, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether the Public Official and Employee Ethics Act (`.Ethics Act "), 65 C Pa S. § 1101 et seg. would impose prohibitions or restrictions upon an individual serving as a county soFiitor with regard to simultaneously serving as an appointed, part -time assistant district attorney with the county office of the district attorney. Facts: You request an advisory from the Commission based upon submitted facts Mat may be fairly summarized as follows. You are the District Attorney of Susquehanna County ( "County "), Pennsylvania. Although a First Assistant District Attorney is assigned to the Office of the District Attorney of Susquehanna County ( "County District Attorney's Office ") to assist you, the ability of the County District Attorney's Office to fulfill its responsibilities may be strained if you would need to be absent fora period of unscheduled time. The current County Solicitor, Michael J. Giangrieco, Esquire "Mr. Giangrieco"), informed you that he would be willing to assist the County District Attorney's Office as needed in the capacity of an appointed, part -time Assistant District Attorney. You ask whether the Ethics Act would impose any prohibitions or restrictions upon Mr. Giangrieco with regard to simultaneously serving as the County Solicitor and an appointed, part -time Assistant District Attorney for the County District Attorney's Office. It is administratively noted that as the County District Attorney, you are the apppointing authority for County Assistant District Attorneys and therefore have standing to submit the instant advisory request. See, 16 P.S. § 1420; 65 Pa.C.S. § 1107(11). Discussion: It is initially noted that pursuant to Sections 1107('10) and 1107('11) of e 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. hf '1107(10), (11). An advisory only affords a defense to the extent the requester has trutn ully disclosed all of the material facts. FAX: (717) 787 -0806 0 Web Site: www. ethics. state. pa. us 0 e -mail: ethics state. a.us Klein, 17 -566 September 21, 2017 Page 2 Preliminarily, it is noted that the submitted facts are insufficient to enable a conclusive determination as to whether Mr. Giangrieco, in his capacity as the County Solicitor, would be considered a public employee subject to the provisions of the Ethics Act. See, P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999) (holding that a co ic itor who is employed by a governmental body and not Just on retainer would be considered a "public employee" subject to the provisions of the Ethics Act }}; cf., C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Cmwlth. 1997), alloc. den., 550F56. 68 4 A.2d 640 1997 o mg that retained - -as opposed to employed"- solicitors are not public officials /public employees under the Ethics Act). However, if Mr. Giangrieco would be appointed as a part-time Assistant District Attorney for the County District Attorney's Office, he would in that capacity be considered a public official subJ ct to the provisions of the Ethics Act. See, 65 Pa.C.S. § 1102; Rendell, Opinion 79 -007; Flanigan, Advice 17 -531; Torrence, Advice 11 -525; Lehutsky, A vice 1- 528. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms pertaining to conflicts of interest under the Ethics Act are defined as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited Klein, 17 -566 pember 21, 2017 Page 3 merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. With regard to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. PA. CONST. art. VI, § 2. There does not appear to be any statutorily - declared incompatibility that would preclude Mr. Giangrieco from simultaneously serving as the County Solicitor and a part --time Assistant District Attorney for the County District Attorney's Office. Turning to the question of conflict of interest, where simultaneous service would place the public official /public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02 -009). Where an inherent mpossiG conflict would exist, it would appear to be ile, as a practical matter, for the _public official/public employee to function in the conflicting positions without running afoul of Section 1103(a) of the Ethics Act. Absent a statutorily - declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position. However, in each instance of a conflict of interest, the individual would be required to abstain from participation. In this case, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude Mr. Giangrieco from simultaneously serving as the County Solicitor and a part --time Assistant District Attorney for the County District Attorney's Office. Consequently, such simultaneous service would be permitted within the parameters of Section 1103(a) of the Ethics Act. This Advice is expressly subject to the condition that Mr. Giangrieco would perform the duties of the aforesaid positions without an overlap of time. Cf., Bornstein, Order 1463; Turner, Advice 17 -554; _Kim, Advice 14 -537; Quinn, Advice 'I T- 528�d- ential Advice, 10-602; Laub, Advice 06 -519. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) you are the District Attorney of usque anna County ( "County "), Pennsylvania; (2) although a First Assistant District Attorney is assigned to the Office of the District Attorney of Susquehanna County ( "County District Attorney's Office ") to assist you, the ability of the County District Attorneys Office to fulfill its responsibilities may be strained if you would need to be absent for a period of unscheduled time; and (3) the current County Solicitor, Michael J. Giangrieco, Esquire ( "Mr. Giangrieco'), informed you that he would be willing to assist the County District Attorney's Office as needed in the capacity of an appointed, part -time Assistant District Attorney, you are advised as follows. The submitted facts are insufficient to enable a conclusive determination as to whether Mr. Giangrieco, in his capacity as the County Solicitor, is a public employee subject to the provisions of the Public Official and Employee Ethics Act 'Ethics Act "), 65 Pa.C.S. § 1101 et se g. However, if Mr. Giangrieco would be appointed as a part -time Assistant District Attorney for the County District Attorney's Office, he would in that capacity be a public official subject to the provisions of the Ethics Act. Subject to the restrictions, conditions and qualifications set forth above, Mr. Giangrieco may, consistent with Section 1103 a) of the Ethics Act, simultaneously serve as the County Solicitor and a part-time Assistant District Attorney for the County District Attorney's Office. This Advice is expressly subject to the condition that Mr. Giangrieco would perform the duties of the aforesaid positions without an overlap of time. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Klein, 17 -566 ge—pt6mber 21, 2017 Page 4 Pursuant to Section 1107(11) of the Ethics Act, 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, 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 orif 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 ot 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. Sinc ely, `4 ) �/- M Robin M. Hittie. Chief Counsel i if ,