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HomeMy WebLinkAbout99-634 ShirkKenelm L. Shirk, Ill 115 South State Street Ephrata, PA 17522 -2412 Dear Mr. Shirk: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL December 8, 1999 Re: Public Official /Public Employee; Solicitor; Retained /Employed; Second Class Township; Board of Supervisors. This responds to your letter of November 4, 1999, by which you requested 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 appearing before various entities of the municipality following termination of services as solicitor. Facts: You state that you currently serve as the Solicitor to a Second Class Township ( "Township "). The recent municipal elections have led you to believe that your services as Solicitor will be terminated at the forthcoming January reorganizational meeting of the Township. You state that there are a number of issues concerning the ability of you and the partners and associates of your firm to subsequently "appear before" various separate entities of that Township within one year following the termination of your services as Solicitor. You ask for advice relating to the following issues: 1. Pursuant to the Pennsylvania Municipalities Planning Code, the Solicitor to the Township's Zoning Hearing Board may not legally be the same as the Solicitor to the Board of Supervisors. Since you are not the Solicitor to the Township's Zoning Hearing Board, you ask if it is permissible for you to appear before and contest proceedings relating to that governmental body within one year following termination of your Solicitorship to the Board of Supervisors. 2. You seek clarification of the language, "represent a person. ..on a matter before the governmental body" and ask the following: (a) whether it would be considered inappropriate for you to represent and guide those having subdivision and land development plans before the Board of Supervisors if you do not actually appear before or enter your appearance associated with that matter in the Township; (b) FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 99 -634 Shirk, 99 -634 December 8, 1999 Page 2 whether you may give general legal advice regarding zoning and other matters in the Township to potential clients who might have potential future business or governmental dealings with the Township; and (c) whether you may represent criminal defendants who are prosecuted by the Township's police or by the State Police for crimes occurring in that Township. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Public Official and Employee Ethics Act ( "the Ethics Act "), 65 Pa.C.S. , §§1107(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 Pa.C.S. §§1107(10), (1 1). 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 Act ("Ethics Act "), Act 93 of 1998, 65 Pa.C.S. §1101 gt 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 Alta, 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 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: Shirk, 99 -634 December 8, 1999 Page 3 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. //), 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. // 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. Id.,., 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 a Second Class Township, 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 and specifically, Section 1103(g) of the Ethics Act. However, all Solicitors are required to file Statements of Financial Interests. 65 Pa.C.S. §1104(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 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" is subject to Section 1103(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. Based upon the above, your specific inquiries need not be addressed. 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 Shirk, 99 -634 December 8, 1999 Page 4 involve an interpretation of the Ethics Act. 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 a Second Class Township, you are retained by — as opposed to being an employee of — a Second Class Township, you would not be considered a public official /public employee subject to the Ethics Act. Consequently, Section 1 103(g) of the Ethics Act 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 1 104 and 1105 of the Ethics Act. 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. Pursuant to Section 1 107(1 1), 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). 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. Vincent J. Chief Counsel