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HomeMy WebLinkAbout99-531 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL March 30, 1999 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics@state.pa.us 99 -531 Re: Public Official /Public Employee; Solicitor; Retained /Employed; SFI; Income from Clients This responds to your letters of March 10 and 15, 1999, by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act 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 the Statement of Financial Interests ( "SFI "). Facts: As a part-time Solicitor for a township, you receive payment on an hourly basis. You are not an employee of the township. You request an advisory from the State Ethics Commission as to whether you are required to file Statements of Financial Interests and if you are required to list each client who has paid you $1,300 or more in any given year on the SFI. Discussion: In 1997, the status of Solicitors under the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, 65 Pa.C.S. §1101 .fit 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 n i , No. 0091 M.D. Appeal Docket 1997, the Commonwealth Court of Pennsylvania held, inter alia, that the conflict of interest provisions of the Ethics Act 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 Act and is not subject to the conflict of interest provisions of the Ethics Act. 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). Confidential, 99 -531 March 30, 1999 Page 2 According to the facts which you have submitted, as a township Solicitor, 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 Act. However, all Solicitors are required to file Statements of Financial Interests. See 65 Pa.C.S. §1104(a): "...Persons who are full -time or part-time solicitors for political subdivisions are required to file under this section." See also Foster, Opinion No. 98- 002. Therefore, you would be required to file Statements of Financial Interests providing full disclosure as required by the Ethics Act, 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" rs subject to Section 1 103(b) of the Ethics Act. Foster, Opinion No. 98 -002. Section 1103(b) of the Ethics Act 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 judgment 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. In response to your second inquiry, as to whether you would be required to list on the SFI each individual client who has paid you $1,300 or more in any given year, you would only be required to list the name and address of your law firm as the source of income, and not each individual client. See 51 Pa Code §17.4(a): "The name and address of a direct or indirect source of income, including employers, in the aggregate of $1,300 or more or the amount as adjusted under section 5(d) of the act (65 P.S. §405(d)) and §19.5 (relating to reporting threshold adjustments) shall be reported unless the disclosure would require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges." Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, 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. Specifically not addressed herein is the applicability of the Rules of Professional Conduct. Conclusion: Based upon the submitted facts that as a township Solicitor, you are retained by — as opposed to being an employee of — the township, you would not be considered a public official /public employee subject to the Ethics Act. However, all Solicitors are required to file Statements of Financial Interests pursuant to Sections 1 104 and 1 105 of the Ethics Act. Although you are required to list the name and address of all sources of income of $1,300 or more in each year which would include the name and address of your law firm, you do not have to list the names and addresses of individual clients. Furthermore, Section 1103(b) of the Ethics Act 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 Act. Confidential, 99 -531 March 30, 1999 Page 3 Pursuant to Section 1107(11), an 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, provided 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 I. 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. VincentWi. Dopko Chief Counsel