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HomeMy WebLinkAbout98-526 MargolisHerbert Margolis, Esquire Margolis, George & Port 92 E. Main St., Ste. One Uniontown, PA 15401 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 11, 1998 98 -526 Re: Public Official /Public Employee; Solicitor; Retained /Employed; FIS Filing Requirement. Dear Mr. Margolis: This responds to your letter of February 5, 1998, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a municipal Solicitor who is retained by — as opposed to being an employee of — the governmental body, with regard to filing Statements of Financial Interests. Facts: Until December 1, 1997, you served as Solicitor for three public bodies. You presently serve as Solicitor for two public bodies. You state that you have always filed Statements of Financial Interests with such political subdivisions. In light of the recent Commonwealth Court decision in the case of C.P.C. v. State Ethics Commission, 698 A.2d 155 (1997), you ask whether you are still obligated to file Statements of Financial Interests. You note that you are not a full -time salaried employee of any of the political subdivisions that you represent. You also ask whether you are obligated to file a Statement of Financial Interests prior to May 1, 1998 with the political subdivision that fired you on December 1, 1997. Finally, as to any prospective appointment(s) as Solicitor to other political subdivision(s) between now and April 14, 1998, you ask whether you must file a Statement of Financial Interests with such political subdivision(s) within 15 days following your appointment. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts Margolis, 98 -526 March 11, 1998 Page 2 relevant to the inquiry. 65 P.S. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. In 1997, the status of Solicitors under the Public Official and Employe Ethics Law ( "Ethics Law "), Act 9 of 1989, P.L. 26, 65 P.S. §401 el seq., was clarified by the appellate courts of Pennsylvania. In P.J.S. v. State Ethics Commission, 697 A.2d 286 (Pa. Commw. Ct. 1997), appeal pending, No. 0091 M.D. Appeal Docket 1997, the Commonwealth Court of Pennsylvania held, inter alia, that the conflict of interest provisions of the Ethics Law do apply to solicitors who are public employees and are not just on retainer. However, in C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Commw. Ct. 1997), based upon an analysis of prior precedents including Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981), Maunus v. State Ethics Commission, 518 Pa. 592, 544 A.2d 1324 (1988), and P.J.S v. State Ethics Commission, 669 A.2d 1105 (Pa. Commw. Ct. 1996), the Commonwealth Court of Pennsylvania set forth its view that a municipal Solicitor who is retained by — as opposed to being an employee of — the governmental body is not a "public official" or "public employee" as defined in the Ethics Law and is not subject to the conflict of interest provisions of the Ethics Law. The Court stated: ... [T]his court pointed out in P.J.S. that the General Assembly did not add or include "solicitors" in its definitions of "public employees" or "public officials" whose conduct is regulated by section 3 of the Ethics Act. Id. As such, this court stated that it could not conclude that it was clearly the General Assembly's intent to include "solicitors," who are not normally full - time public employees, but more like consultants, among the class of persons required to comply with the regulations regarding ethical and professional conduct under section 3 of the Ethics Act. Id. Based upon our review of the pleadings in this case and our analysis of Ballou, Maunus and P.J.S., we conclude that CPC's conduct is not governed by the provisions of the Ethics Act and that he is not subject to the jurisdiction of the Commission. G.P.C. v. State Ethics Commission, supra, 698 A.2d at 159. The Court further stated, in a footnote: We note that on July 3, 1997, this court issued its decision in P.J.S. v. Pennsylvania State Ethics Commission, 697 A.2d 286 (Pa. Cmwlth. 1997) (P.J.S. 11), this court reiterated that the conflict of interest provisions of section 3 of the Ethics Act apply to solicitors who are public employees and not just on retainer. P.J.S. was hired as a full -time solicitor for the City of Erie, was placed on the City payroll, was paid a salary and received the same benefits as other employees of the City. Like the Commonwealth attorneys in Maunus, P.J.S.'s status with the City was that of an employee rather than a consultant on retainer or an independent contractor. Accordingly, this court determined that P.J.S. was a public employee who was covered by section 3 of the Ethics Act. The present case is distinguishable from P.J.S. 11 in that CPC is not a full -time, salaried employee of the borough who receives the same benefits as other borough employees. Rather, CPC is a legal advisor or Margolis, 98 -526 March 11, 1998 Page 3 consultant on retainer to the borough. As such, his conduct is not covered by section 3 of the. Ethics Act. Iii,., at Note 10. The State Ethics Commission filed a Petition for Allowance of Appeal in the C.P.C. case, which Petition was denied. No. 614 M.D. Allocatur Docket 1997 (Pa. December 2, 1997). The facts which you have submitted indicate that in your various positions as Solicitor, you are not an employee of the governmental bodies, but rather are retained. Therefore, based upon C.P.C., supra, you would not be considered a "public official" or a "public employee" subject to the Ethics Law. However, I II Solicitors are required to file Statements of Financial Interests. 65 P.S. §404(a); Foster, Opinion No. 98 -002. Therefore, in response to your first specific inquiry, you would be required to file Statements of Financial Interests providing full disclosure as required by the Ethics Law, each year the aforesaid positions as Solicitor are held and the year following termination of service in said positions. In response to your second specific inquiry, you would be obligated to file a Statement of Financial Interests prior to May 1, 1998 with the political subdivision that fired you on December 1, 1997. In response to your third and final specific inquiry, as to any prospective appointment(s) as Solicitor to other political subdivision(s) between now and April 14, 1998, you would be required to file a Statement of Financial Interests with such political subdivision(s). However, the deadline for filing the form would be May 1, 1998. See, 65 P.S. §404. You are further advised that it is the State Ethics Commission's view that every "person" is subject to Section 3(b) of the Ethics Law. Foster, Opinion No. 98 -002. Section 3(b) of the Ethics Law essentially provides that no "person" shall offer or give to a public official, public employee, or nominee or candidate for public office, or to a member of such an individual's immediate family, or to a business with which such an individual is associated, anything of monetary value based upon the offeror's /donor's understanding that the vote, official action, or judgement of the public official, public employee, or nominee or candidate for public office would be influenced thereby. The State Ethics Commission has held that a Solicitor, though not himself a public official /public employee, may not engage in such conduct in his capacity as a "person." Foster, supra. Of course, reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to your inquiry in light of the aforesaid developments in case law. 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. Specifically not addressed herein is the applicability of the respective municipal code(s) or the Rules of Professional Conduct. Conclusion: Based upon the submitted facts that in your various positions as Solicitor for different public bodies, you are retained by — as opposed to being an employee of — those bodies, you would not be considered a public official /public employee subject to the Ethics Law. However, like all other Solicitors, you would be JVlargolis, 98 -526 March 11, 1998 Page 4 required to file Statements of Financial Interests pursuant to Sections 4 and 5 of the Ethics Law, each year such positions are held and the year following termination in such positions. Furthermore, Section 3(b) of the Ethics Law applies to all "persons" including "persons" who happen to be Solicitors, regardless of whether they are public officials /public employees. 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. 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 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 wilting and must be actually received at the Commission within thirty (30) days of the date of 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. cerely, A9c Vincent Dopko Chief Counsel