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HomeMy WebLinkAbout91-567 ShorallDear Attorney Shorall: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 20, 1991 Mr. John G. Shorall, II 91 -567 Shorall and Shorall Attorneys at Law 15th Floor - Frick Building Pittsburgh, PA 15219 Re: Public Employee /Official, FIS, Attorneys, Co -Bond Counsel, Allegheny County Finance and Development Commission This responds to your letter of July 1, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether members of the law firm of Shorall and Shorall in the capacity as Co -Bond Counsel for the Allegheny County Finance and Development Commission are to be considered public officials /employees under the Public Official and Employee Ethics Law ( "Ethics Law "), and therefore, required to comply with the financial reporting and disclosure provisions of the Ethics Law. Facts: The law firm of Shorall and Shorall acts as Co -Bond Counsel for the Allegheny County Finance and Development Commission (the "Commission "), which is comprised of various Allegheny County Authorities including the Allegheny County Higher Education Building Authority, the Allegheny County Hospital Development Authority, the Allegheny County Industrial Development Authority, and the Allegheny County Residential Finance Authority. The Authorities within the Commission are represented by their respective solicitors. Members of your law firm, as Co -Bond. Counsel, act as independent bond lawyers offering approving opinions for issues of the various Authorities comprising the Commission. You note that such opinions address, among other things, the validity and tax - exempt status of transactions. As Co -Bond Counsel, you act as independent legal experts whose responsibility is to render an objective legal opinion rather than the partisan position of an advocate, with regard to the bonds. Mr. John G. Shorall, II August 20, 1991 Page 2 Your specific inquiry is whether, with respect to your . services as Co -Bond Counsel, members of your firm would be deemed "public employees" subject to the financial reporting and disclosure provisions of the Ethics Law. You state your belief that the members of your firm would not be considered "public employees" because you are not employed by the Commission or by the Authorities which comprise the Commission. You state your opinion that you are not responsible for taking or recommending official action of a non - ministerial nature with regard to (1) contracting or procurement, (2) administering or monitoring grants or subsidies, (3) planning or zoning, (4) inspecting, licensing, recommending or auditing any person or (5) any other activity where the official action has an economic impact of greater than a de minimis nature in the interest of any person; all of which you note is set forth in Section 2 of the Ethics Law. You state that you do not fall within the definition of "solicitor" and therefore, you do not believe that members of your firm are "public employees" or "solicitors ", either part - time or full -time, to the various Authorities within the Commission. While your office works in conjunction with the Solicitors for the Commission and the Authorities, you state that your role is separate and distinct from theirs. Additionally, you do not receive compensation from the Commission. The fees paid to your office in connection with your efforts as Co -Bond Counsel are paid either from the proceeds of the bonds or, in certain circumstances, directly by the borrower in conduit and other financings. Pursuant to your work as Co -Bond Counsel, you are a charter member of the Pennsylvania Association of Bond Lawyers and a member of the National Association of Bond Lawyers. You have reviewed the publications and periodicals of those organizations and have found no guidance with respect to your inquiry. You are also unaware of the position taken by other bond counsel firms within the Commonwealth of .Pennsylvania in this respect. Based upon your review of the Ethics Law and various case law involving this Commission, you believe that the provisions of the Ethics Law and the holdings of those cases exclude your office and its efforts as Co -Bond Counsel from the definition of "public employee" and the requirements for filing Statements of Financial Interests. However, you seek the advice of this Commission in this regard. Finally, you note that you personally serve as Assistant City Solicitor for the City of Pittsburgh and in that capacity you annually file a Statement of Financial Interests. Additionally, George Shorall, a partner in your firm, serves as Solicitor for the Allegheny County Retirement Board and he also Mr. John G. Shorall, II August 20, 1991 Page 3 annually files a Statement of Financial Interests in that capacity. Discussion: You question whether the requirements of the Ethics Law with regard to financial reporting and disclosure for public officials /public employees would be applicable to the members of your law firm in their capacity as Co -Bond Counsel for the Allegheny County Finance and Development Commission. You do not believe your duties and responsibilities are within the definition of "public employee." We note that, for the sake of this response, we are relying primarily on the your submitted description of your duties and responsibilities as Co -Bond Counsel as set forth in your letter of July 1, 1991. The term "public employee" is defined in the Ethics Law 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 non - ministerial 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. 65 P.S. §402. "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. It is further noted that full -time and part -time Solicitors for political subdivisions are "public employees" subject to the Mr. John G. Shorall, II August 20, 1991 Page 4 financial reporting and disclosure requirements, as well as the other restrictions of the Ethics Law. See, 65 P.S. §404(a); Spataro, Opinion 89 -009 at 4; Maunus v. Com., State Ethics Com., 544 A.2d 1324, 1326 (1988). Based upon the definition of "public employee" as applied to your firm's duties and responsibilities as Co -Bond Counsel for the Allegheny County Finance and Development Commission, and in light of the Commonwealth Court's holding in Rosters v. Com., State Ethics Commission 80 Pa. Commw. 43, 470 A.2d 1120 (1984), members of your firm in the capacity of Co -Bond Counsel are not to be considered "public employees" as that term is defined in the Ethics Law. An objective review of the information you have provided regarding your role as Co -Bond Counsel indicates that you are not responsible for taking or recommending official action of a non - ministerial nature with regard to any of the five categories set forth in the definition listed above for the term "public employee." Rather, you render objective legal opinions as independent legal experts in a particular area of expertise. You are not appointed to the office of Solicitor for the Commission or for any of the Authorities within the Commission. You are acting in the capacity of an independent legal consultant, rather than as a Solicitor. Furthermore, you are paid for your services from the proceeds of the bonds or in certain circumstances directly by the borrower rather than by the Commission itself. Thus, because the members of your law firm are not within the classification of the term "public employee" in the capacity as Co -Bond Counsel for the Allegheny County Finance and Development Commission, they would not be subject to the financial reporting and disclosure requirements of the Ethics Law. Accordingly, as Co -Bond Counsel for the Commission, the members of your law firm would not be required to file the Statement of Financial Interests for the years in which they serve in that capacity. To the extent the members of your firm serve in other capacities in which they are considered public officials /employees, they would be subject to the Ethics Law and would be required to file Statements of Financial Interests in those capacities. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As Co -Bond Counsel for the Allegheny County Finance and Development Commission, the members of your law firm are not Mr. John G. Shorall, II August 20, 1991 Page 5 to be considered public employees as defined in the Ethics Law. Accordingly, in that capacity they would not be subject to the financial reporting and disclosure requirements of the Ethics Law and need not file Statements of Financial Interests. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, e 040 Vincent J. Dopko, Chief Counsel