HomeMy WebLinkAbout00-523 BoroffAlan E. Boroff, Esq.
Flamm, Boroff & Bacine, PC
Union Meeting Corporate Center
925 Harvest Drive, Suite 220
Blue Bell, PA 19422
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1-800 -932 -0936
ADVICE OF COUNSEL
February 17, 2000
Re: Public Official /Public Employee; Solicitor; Retained /Employed; Township.
00 -523
Dear Mr. Boroff:
This responds to your letter of January 18, 2000, 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 representing a
person before the municipality following termination of service as solicitor.
Facts: In February 1994, you were appointed Solicitor for a municipal
governmental body. You were reappointed each January for five consecutive years.
The Township terminated your appointment effective January 2, 2000.
As an appointed Solicitor, your service was considered at -will. You were not
on the municipality's payroll, and received no benefits such as health -care, pension or
retirement benefits. All fees were charged on an hourly basis for services rendered.
You request an advisory under the Ethics Act as to whether, in your capacity
as Solicitor, you were a "public employee" subject to the conflict of interest provisions
of the Ethics Act. You ask whether between January 3, 2000 and January 2, 2001,
you, as a former solicitor, may represent an applicant or developer before the
governing body for which you were the acting solicitor. You state that Section 1 103
expressly applies to "public officials" and "public employees" and that the statute is
not clear on whether a solicitor falls under either of these two categories.
You cite two leading cases, C.P.C. v. State Ethics Commission, 698 A.2d 155
(Pa.Commw. Ct. 1997) and P.J.S. v. Pennsylvania State Ethics Commission, - - -Pa. - - -,
723 A.2d 174 (1999). You state that the above cases reach different results based
on inopposite facts.
You state that in C.P.C., the Commonwealth Court was faced with the issue
of whether a solicitor was a "public employee" within the scope of the Ethics Act for
purposes of determining whether he was subject to the "conflict of interest" provisions
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us
Boroff, 00 -523
February 17, 2000
Page 2
of the Act. You state that the Court relied on the Supreme Court's holding in Ballou
v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981), wherein the Court
held that a solicitor is not a "public employee" or "public official" subject to the Act
where he or she is retained as legal advisor to a municipal client, which is directly
accountable to the public and is responsible for authorizing his or her action.
You state that in P.J.S., an attorney who was acting as a city solicitor was
found to be a "public employee" subject to investigation under the conflict of interest
provisions of the Act. The attorney who was hired as a full -time solicitor for the city
and on the city's payroll, received a salary and benefits like other city employees. You
point out that the attorney was paid for a seven hour workday, was enrolled in the
pension plan and the workmen's compensation plan for city employees, and was
issued W -2 statements. In addition, all federal, state and municipal taxes were
withheld from his paycheck. The solicitor accumulated paid sick leave and vacation
time. Under the foregoing circumstances, the Court determined that the solicitor was
a "public employee" subject to the Ethics Act.
You believe that your former position as Solicitor more closely parallels the
solicitorship position which was considered in C.P.C. in that you: 1) were at -will and
could be terminated at any time; 2) were not employed by the municipality and were
not on the municipality's payroll; 3) were not subject to withholding taxes and were
not in receipt of W -2 statements; 4) were not entitled to sick days and vacation days;
and 5) were not eligible to participate in the pension plan or workmen's compensation
plan or other employee benefits. You state that you functioned as a legal advisor to
the appointing body and that you performed professional or advisory services and
received a fee for such services. Based on the above facts, you believe that you are
not a "former public official /employee" subject to Section 1 103(g) of the Ethics Act.
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 el 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 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
Boroff, 00 -523
February 17, 2000
Page 3
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 Ba/ /ou, 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. // 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.
1_q_„ 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 in your former capacity as
Solicitor for a municipal governmental body, you were not an employee of the said
governmental body, but rather were retained. Therefore, based upon C.P.C., supra,
you were not a "public official" or a "public employee" subject to the Ethics Act and
are not subject to Section 1103(g) of the Ethics Act as it applies to former public
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February 17, 2000
Page 4
officials /employees. However, a ll 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 Tight 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: Based upon the submitted facts that as Solicitor for a municipal
governing body, you were retained by — as opposed to being an employee of — the
municipal governing body, you would not be considered to have been a public
official /public employee subject to the Ethics Act. Consequently, Section 1103(g) of
the Ethics Act which applies to former public officials /employees would not apply to
you. However, all Solicitors are required to file Statements of Financial Interests
pursuant to Sections 1 104 and 1 105 of the Ethics Act. Furthermore, Section 1 103(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 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
Boroff, 00 -523
February 17, 2000
Page 5
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,
•
incent J'I opko
Chief Counsel