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HomeMy WebLinkAbout88-578 BrinkmannLawrence E. Brinkmann, Esquire Broad and Mechanic Streets 95 North Broad Street P. O. Box 1011 Doylestown, PA 18901 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 6, 1988 Re: Public Employee, Solicitor, County Clerk of Courts Dear Mr. Brinkmann: 88 - 578 This responds to your letter of April 18, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether a solicitor to the County Clerk of Courts is a public employee under the Ethics Act so as to be required to file the Statement of Financial Interests and secondly, if said solicitor is a public employee, whether there would be any restrictions or a prohibition under the Ethics Act upon that individual serving as the solicitor to the County Clerk of Courts when he is also an associate in the private law firm of the County Clerk of Courts. Facts: You state that upon your admission to the Bar in 1983, you worked in the Bucks County Public Defender's Office until December 1986 when you left that position and accepted employment as an associate in the law firm of John McClure. You further state that Mr. McClure had his own general practice and that you were employed as one of three associates in that firm. As an associate, you advise that you are paid an annual salary and receive no share of the profits of the business. After John McClure was elected to the position of Clerk of Courts, Criminal Division for the Court of Common Pleas Bucks County in 1987, you state that he requested you to serve as solicitor after he took office in January of 1988. You state that the job entails research and writing legal opinions in response to legal questions that arise out of the Office of the Clerk of Courts. You state that initially the annual salary was $3,500 but was subsequently raised by the County Commissioners and Salary Board Lawrence E. Brinkmann, Esquire June 6, 1988 Page 2 ':o $6,000 a year which is the same for all solicitors in the Cornty row offices. Regarding the increase in salary, you state that Mr. McClure did not participate in the vote and that your salary as solicitor is yours individually and is not paid over to the law firm. After stating that you continued to wori-full -time as an associate in Mr. McClure's law firm for which you receive an annual salary that was raised in October of 1987, you advise that you perform your work for the Clerk of Courts Office separately and in addition to your duties with the law firm. After noting that your name is listed on the letterhead of the law firm stationary, you state that you have your own stationary for the solicitorship on which all work is done for the Clerk of Courts Office without any reference to your position in Mr. McCIu::e's law firm. You conclude by asking two questions undo— the Ethics Act: Whether the position of solicitor to the Cie_k of Courts Office is one wherein the holder is required to file a Statement of Financial Interests under the State Ethics Act and secondly whether you as an associate in the law firm of John M. McClure may serve as the solicitor for the Bucks County Clerk of :courts Office when John M. McClure currently holds the position •4..' Clerk of Courts. Discussion: Regarding your first question as to whether you -ire a public official /employee required to file a Statement of Financial Interests under the Ethics Act, it is necessary to review the position of a solicitor to a county row office. In this regard, the status of the typical part -time county /municipal solicitor was considered by the Pennsylvania Supreme Court in Ballou v. State Ethics Commission, 496 Pa. 127 (1981). Preliminarily, it should be noted that the Supreme Court only addressed the narrcw question as to whether such part -time local solicitors who were on some sort of retainer with a governmental body were deemed to be "public employees" as tha term is defined under the Ethics Act so as to be required to file the Statement of Financial Interests. After analogizing the position of such solicitors to that of a consultant, the Court concluded that this particular category of solicitor was not a "public employee" under the Ethics Act: "(4j Unlike a public employee, a solicitor has no enforceabl:s: right to continue in his position for the tenure of his appointment. Our cases have held that, as a consequence of the solicitor's confidential relationship with the appointing body which he serves, the solicitor is removable at the will of the appointing power. Even if appointed for a fixed term and salary, the solicitor has no 2 Lawrence E. Brinkmann, Esclu? June 6, 1988 Page 3 contractual right to recover Eny • resulting loss in compensation. See Snyderwine v. Cralev, Pa. 349, 254 A.ed 16 (1969); Naef v. Allentown, 424 Pa. 597, 227 A.2d 888 (1967)." "Further, unlike a public official,the solicitor is responsible only to the appointing body, and may act only pursuant to that body's authorization. He owes no independent duties to the public, and exercises none of the powers of sovereignty. In speaking of a county solicitor, this Court has stated: "No functions of government are delegated to him. Nor can he lawfully exercise any powers of sovereignty. He serves as counsel to the commissioners in the discharge of their public duty just as any privately employed attorney serves his clients. His .duties are to advise the commissioners and to represent the county in litigation authorized by them or instituted against the county." "His duties are important in the sense that the advice and actions of an attorney always entail grave responsibility; but they are performed for the board. He has no direct connection with, or responsibility to, the public; he is entirely subordinate to the board; they may follow his advice or disregard it; he cannot control their actions; he cannot perform their duties; his appointment is for no definite term, and he can. be recalled at any time; he has no grave and important duties involving a function of government in their performance..." "Commonwealth ex rel. Foreman v. Hampson, 393 Pa. 467, 473 & 474 -75, 143 A.2d 369, 372 & 372 -73 (1958), quoting Alworth v. County of Lackawanna, 85 Pa. Super. 349, 352 (1925). See also, Wiest v. Northumberland County, 115 Pa. Super. 577, 176 A. 74 (1935)." Id. at 134, 135." Assuming that your position is in the nature of the typical part -time solicitor, you as solicitor to the Bucks County Clerk of Courts are not considered a "public employee" under the Ethics Act; based upon the holding in the Ballou case supra, consequently, you would not be required to file the Statement of Financial Interests. 3 Lawrence E. Brinkmann, Esquire June 6, 1988 Page 4 In light of the fact that you a:-e not a public employee /official under the Ethics act, your second inquiry cannot be addressed since the main subsections of section 3 of the Ethics Act regarding restricted activities only apply to public officials or employees, with the exception of 39b) which applies to all persons. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(h) of the Ethics Act cited above, no person shall offer or give anything of value to a public official/employee based on the understanding or with the intention that the latter's judgment would be influenced thereby. It is assumed such a situation does not exist here. This section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statue, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: Assuming your position of solicitor to the Clerk of Courts of Bucks County is in the nature of the typical part - time solicitor, you are not a "public employee" as that term is defined under the Ethics Act and consequently you are not required to file a Statement of Financial Interests under the holding of the Ballou case. If you are not a "public employee ", 4 Lawrence E. Brinkmann, Esquire June 6, 1988 Page 5 the question of whether you may be an associate in the law firm of John M. McClure and also serve as the solicitor to the Bucks County Clerk of Courts which position is held by Mr. McClure cannot be addressed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics 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. 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 Commission will be scheduled and a former 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 52.12. S' cerely, 1, -LAAN 0CY la Vincent J. Dopko, General Counsel 5