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HomeMy WebLinkAbout98-618 KleinJoel A. Klein, Esquire 1931 E. Carson St. Pittsburgh, PA 15203 Dear Mr. Klein: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL December 2, 1998 FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec@state.pa.us 98 -618 Re: Public Official /Public Employee; School District; Solicitor; Retained /Employed; Applicant for Employment; Pennsylvania State Education Association. This responds to your letter of November 3, 1998, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a municipal Solicitor who is retained by — as opposed to being an employee of — a school district, with regard to applying for an employment position with the Pennsylvania State Education Association. Facts: You are the Solicitor for the West Jefferson Hills School District ( "School District ") in Allegheny County. The School District's teachers are represented by the Pennsylvania Federation of Teachers. You have applied for employment with the Pennsylvania State Education Association ( "PSEA "), but as yet have not been hired. If you were to be hired by PSEA, it would be a full -time position and you no longer would be engaged in the practice of law and would resign your position as the School District's Solicitor. In a letter to Mrs. Karen Cassel, School District Director William P. Krill has claimed that your application for a position with PSEA constitutes "an extreme case of conflict of interest," and he requests that a new Solicitor be appointed at an Organizational Meeting on December 8, 1998. You have submitted a copy of this letter which is incorporated herein by reference. You ask for an advisory from the State Ethics Commission as to whether the above situation constitutes a conflict of interest for you and if you were under any ethical obligation to inform the School Board that you were applying for a position with "a union which is not associated with the School District." You state that you would appreciate a reply before the December 8, 1998 Organizational Meeting of the School Board. Klein, 98 -618 December 2, 1998 Page 2 Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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 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 Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, P.L. 26, 65 P.S. §401 t seq., was addressed by the Commonwealth Court 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 1 105 (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 municipality 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. C.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 Klein, 98 -618 December 2, 1998 Page 3 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. // 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 consultant on retainer to the borough. As such, his conduct is not covered by section 3 of the Ethics Act. Imo,., at Note 10. The State Ethics Commission filed a Petition for Allowance of Appeal in the C.P.C. case, which Petition was denied. See, 704 A.2d 640 (Pa. 1997). The facts which you have submitted indicate that as Solicitor of the West Jefferson Hills School District, Allegheny County, you are not an employee of the said governmental body, 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 and specifically, Section 3(a) of the Ethics Law. However, all Solicitors are required to file Statements of Financial Interests. 65 P.S. §404(a); Foster, Opinion No. 98 -002. Therefore, you would be required to file Statements of Financial Interests providing full disclosure as required by the Ethics Law, each year the aforesaid position as Solicitor is held and the year following termination of service in said position. Moreover, 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 or the Rules of Professional Conduct. Conclusion: Based upon the submitted facts that as Solicitor of the West Jefferson Hills School District, you are retained by — as opposed to being an employee of — the School District, you would not be considered a public official /public employee subject to the Ethics Law. Consequently, Section 3(a) of the Ethics Law would not apply to you in the said capacity as Solicitor. However, all Solicitors are required to file Statements of Financial Interests pursuant to Sections 4 and 5 of the Ethics Law. Klein, 98 -618 December 2, 1998 Page 4 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(1 1), 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 writing 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. erely, Vincent . Dopko Chief Counsel