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HomeMy WebLinkAbout00-504 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL January 20, 2000 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 00 -504 Re: Public Official /Public Employee; Solicitor; Retained /Employed; County; Private Attorney; District Attorney; County Commissioners. This responds to your letter of December 17, 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 county solicitor who is retained by — as opposed to being an employee of — the county, with regard to continuing to serve as the part - time solicitor when a partner in her private law firm is the county's district attorney. Facts: You are currently the part-time Solicitor for A County. You are also an associate attorney at B Firm. In November 1999, one of the partners at B Firm was elected District Attorney for A County, a part-time position. The District Attorney will be sworn in on December 30, 1999 and take office on January 3, 2000. On January 3, 2000, the County Commissioners will hold their reorganization meeting. You anticipate that you will be reappointed as the County Solicitor. You request a confidential advisory as to whether you would have a conflict of interest in continuing to serve as the County Solicitor when a partner from your firm is the County District Attorney. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(1 1) of the Public Official and Employee Ethics Act ( "the Ethics Act "), 65 Pa.C.S. §§1107(10), (1 1), 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), (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 Act ( "Ethics Act "), Act 93 of 1998, 65 Pa.C.S. §1101 e sea., 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 Confidential Advice, 00 -504 January 20, 2000 Page 2 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 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 Ba11ou, 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 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 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). Confidential Advice, 00 -504 January 20, 2000 Page 3 The facts which you have submitted do not indicate whether you as Solicitor of A County, are hired as a (part-time) employee of the said governmental body, or are retained as an appointed part -time non - employee solicitor. Assuming you are retained as a part -time appointed non - employee attorney, 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, the conflict of interest provision under Section 1 103(a) 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 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. 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 respective municipal code or the Rules of Professional Conduct. Conclusion: The facts which you have submitted do not indicate whether you as Solicitor of A County, are hired as a (part-time) employee of the said governmental body, or are retained as an appointed part -time non - employee solicitor. Assuming you are retained as a part -time appointed non - employee attorney, 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, the conflict of interest provision under Section 1 103(a) of the Ethics Act. However, all Solicitors are required to file Statements of Financial Interests pursuant to Sections 1104 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. Confidential Advice, 00 -504 January 20, 2000 Page 4 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. i opko Chief Counsel