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Home My WebLink About88-613 BellRobert S. Bell, Esquire First United Federal Building 682 Philadelphia Street Indiana, PA 15701 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL - July 28, 1988 Re: Conflict of Interest, Appointment of Solicitor, Second Class Township Dear Mr. Bell: This responds to your letter of June 17, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restrictions upon the appointment of an attorney as township solicitor where his father as a township supervisor did not participate or vote regarding his appointment. Facts: You state that you are the township solicitor in the township in which your father is supervisor. After stating that - you are a 28 year old practicing attorney in Indiana Pennsylvania living with your parents, you state that you are otherwise independent and pay your own taxes, income and expenses. You then advise that you are the only attorney residing in the township in question and that you were appointed solicitor in a 1988 township reorganizational meeting in which your father took no part in terms of participation or voting. After expressing your view that because you are over 21 years of age and that you are, therefore, not a member of your father's immediate family as that term is defined under the Ethics Act and further that there is no conflict because your father did not participate in the decision regarding your appointment, you request advice under the Ethics Act involving the propriety of your appointment as solicitor. 88 -613 Robert S. Bell, Esquire July 28, 1988 Page 2 Discussion: Regarding the question you have posed, the inquiry must be made to determine whether you are a public official /employee under the Ethics Act as township solicitor. 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 narrow 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 that 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: "[4] Unlike a public employee, a solicitor has no enforceable 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 contractual right to recover any resulting loss in compensation. See Snvderwine 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; Robert S. Bell, Esquire July 28, 1988 Page 3 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 for the township are not considered a "public employee" under the Ethics Act; based upon the holding of the Ballou case, supra. In light of the fact that you are not a public employee /official under the Ethics Act the Ethics Law would not restrict your appoint as solicitor for the township wherein your father is a supervisor who did not participate or vote in your appointment. In this regard it should be noted that the main subsections of Section 3 of the Ethics Act regarding restricted activities only apply to public officials or employees, with the exception of 3(b) 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 official or public employee or candidate for public office would be influenced thereby. 65 P.S. §403(b). Under Section 3(b) 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 influence thereby. Robert S. Bell, Esquire July 28, 1988 Page 4 It is assumed such a situation does not exit 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 propose 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 township solicitor is of 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 the Ethics Act would not restrict or prohibit your appointment as township solicitor in a township wherein your father is a supervisor who neither participated nor voted regarding your appointment. 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. such. This letter is a public record and will be made available as 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 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. Sincerely, cytio Vincent J. Dopko, General Counsel