Loading...
HomeMy WebLinkAbout79-076 LevinTO: FACTS: DISCUSSION: STATE ETHICS COMMISSION P. 0. Box 1179 Harrisburg, PA 17108 OPINION December 19, 1979 Michael I. Levin Cleckner and Fearen 31 North Second Street Harrisburg, PA 17101 79 -076 RE: Solicitors as Public Employees or Public Officials On November 2, the Commission received a memorandum of law from Michael I. Levin, Esquire, arguing that school board solicitors are neither employees of a political subdivision nor public officials. In summary, Mr. Levin argues that since school board solicitors are generally regarded under Pennsylvania Law to be independent contractors, they are not "employed by the Commonwealth or a political subdivision..." as required by S2. He concedes that full -time salaried solicitors employed by a major school district, such as Philadelphia, may be employees, although whether they are public employees under our Act depends on whether they are recommending official action, or merely giving legal advice to an official when asked. He also argues that school board solicitors are not public officials because there is no term of office. He also notes that law firms are frequently designated as solicitor, and a law firm cannot under the State Ethics Act, be considered a public official. Mssrs. Levin (79 -36), King (79 -34) and McFate (79 -35) were informed that the Commission would reconsider its opinion on solicitors. The issues presented are whether school board solicitors and other solicitors are to be considered public employees, public officials, both or neither. OPINION PAGE 2 The definition of public employee must be construed consistent with the Purpose Clause. Public employee is defined in S2 as follows: Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspection, licensing, regu- lating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. §1 states in part that "in order to strengthen the faith and confidence of the people of the state in their government, the Legislature further declares that the people have the right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust." In order to be considered a public employee, one must meet essentially two criteria: (1) The employee must be responsible for taking or recommending official action of a nonministerial nature, and (2) The official action must be related to certain subject areas (1 -5). A solicitor meets both of these criteria. Solicitors have a special education (doctorate degree in law). Their work consists of applying legal principles from statutes and court opinions to given fact situation. This inter- pretation of laws constitutes, in the opinion of the Commission, "recommending official action" as set forth in S2 of the Act. Secondly, Solicitors of Townships, Boroughs, Municipalities, Zoning Boards, and Planning Commissions deal with at least one of these subject areas. OPINION PAGE 3 Therefore, insofar as these major criteria are concerned, solicitors are public employees. While a solicitor controls the operation of his business, and in that respect is an independent con- tractor, the nature of his service is for the purpose of recommending official action of a nonministerial nature with respect to the areas listed in the public employee definition. §1 states "...[T]his act shall be liberally construed to promote complete disclosure." Therefore, we hold, that for purposes of the State Ethics Act, solicitors are "public employees ". The second issue is whether they are public officials. Before dealing with that issue, it is instructive to review the consequences of finding that solicitors are public officials. First, public officials must file statements of financial interest upon appointment, rather than by May 1 of the following year. §4 (d) , of 4(a). Secondly, public officials must file with the State Ethics Commission "as required by the Act," (S 4 (d), while public employees file only with the governing body with which they are associated ( §4 (a)). On November 7, 1979, we decided that public officials would be treated the same as public employees with respect to certain filing obligations. Carter Opinions 79 -65, 79 -66. We now hold that the phrase, "as required by this act" (S4 (d), also requires appointed compensated public officials to file with the governing body with which they are associated in the same manner as public employees. We now turn to the issue of whether solicitors are public officials. Municipal solicitors, being appointed to an office, appear to clearly meet the definition of public officials. 53 P.S. 12461, 53 P.S. 22508, 53 P.S. 36601. First class township commissioners elect their solicitors to a term of office of two years, 53 P.S. 56201, while second class township solicitors are elected by the Board of Supervisors. 53 P.S. 65580. Borough Solicitors are "officers" who are appointed for "an indefinite term at the pleasure of the council." 53 P.S. 46005(i). The Second Class Township Code does OPINION PAGE 4 not require the Board of Supervisors to specify a set term of office. In practice, appointment is usually made annually, or until revoked by the Board of Supervisors. School board directors likewise appoint solicitors for no fixed term (S406 of the School Code). The State Ethics Act defines a public official in part as "any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof...." Therefore, since municipal solicitors, first class township solicitors, and borough solicitors hold an office, they are public officials, and would be subject to the additional requirement of filing with the State Ethics Commission as well as their respective political sub- division. School board solicitors, while they possess a title, are not referred to in the school code as officers. §325 of the School Code specifically refers to the solicitors and teachers as "position," while school directors hold an "office." Second class township solicitors likewise do not hold an "office." In some areas second class township solicitors are employed only "as needed." Zoning Boards, Planning Commissions, and other governmental bodies created by political subdivisions similarly employ solicitors who do not hold an "office," but do render professional services which consist of recommending official action of a nonministerial nature with respect to contracting, procurement, planning, etc. §2, P$bbicc Employee Definition°. Therefore, we conclude that school board solicitors, second class township solicitors, and solicitors of governmental bodies created by political subdivisions are public employees and not public officials. As such, they only file financial interest statements with the governing authority of the body they represent. Except for those solicitors who are appointed subject to confirmation ( §4 (c)), all solicitors, whether public officials or public employees file their financial interest statements by May 1, 1980 for the year 1979. Last, we turn to the problem of who must file a statement of financial interest where a law firm is OPINION PAGE 5 designated solicitor. Pending the issuance of Regulations on this matter, the Commission holds that the governing body with which that solicitor is associated should designate the individual who shall file a statement of financial interest. It is basically for the client and the public that the requirement of financial disclosure exists, therefore it is only logical to leave that decision with the client governmental body. CONCLUSION: Municipal solicitors, first class township solicitors, and borough solicitors are public officials. They must file statements of financial interest by May 1, (or upon appointment if after May 1) with their respective political subdivision, and the State Ethics Commission. School board solicitors, second class township solicitors, and solicitors of governmental bodies created by those subdivisions such as zoning board solicitors and planning commission solicitors are public employees. They must file statements of financial interest by May 1, (or upon appointment if after May 1 for the preceding year with the governing authority of the governmental body with which they are employed. Where a law firm is designated solicitor, the govern- mental body being represented shall designate the individual who is responsible for filing a financial interest statement. Pursuant to Section 7(9)(i), this opinion 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. UPDATE: A Pennsylvania Supreme Court ruling (436 A.2d 186) addressed this facutal determination. The court ruling states that all part solicitors to political subdivisions are neither public employees nor public officials within the scope of the Ethics Act. Consequently, the Ethics Commission has no jurisdiction over solicitors to political subdivisions. See Update 79 -034. PACrt; J . SMI Cha irman ( SEAL) UPDATE: A Pennsylvania Supreme Court ruling (436 A.2d 186) dealt with a similar factual determination. The court rul- ing states that all part - time solicitors to political subdivisions are neither public employees nor public officials within the scope of the Ethics Act. Consequently, the Ethics Commission has no jurisdiction over solicitors to political subdivisions. The court ruling did not address this particular opinion, but the factual circumstances may be applied to it. A case dealing with the question of application of this court ruling to school board solicitors (Snelbaker) is pending. BE IT KNOWN THAT, STATE ETHICS COMMISSION HARRISBURG, PA. RESOLUTION WHEREAS, the State Ethics Commission is a duly created Commonwealth agency, and WHEREAS, an equitable and competitive management system is required for effective human resource management, and WHEREAS, there exists adequate personnel procedures and job descriptions as set forth in the Commonwealth's Management Directive No. 505.7 under date of December 15, 1975. THEREFORE, IT IS HEREBY RESOLVED all personnel actions will follow the Commonwealth system as set forth above, excepting when the f Commission approves deviations for greater effectiveness and efficiency in meeting Commission responsibilities. Commissioner Commissioner Date: May 11, 1979 Commissioner Commissioner Commissioner Commissioner Subject: Commission Resolution On December 19, 1979 the State Ethics Commission at a meeting in Pittsburgh, Pennsylvania resolved that candidates who did not comply with the five (5) day requirement in the certified letters sent by the Executive Director could be certified as complying with Act 170 under the following circumstances: 1. They file a statement and justification for the delayed filing. 2. It was apparent that they made a reasonable effort to comply. 3. There was no indication of an intent to defy the requirements in the Act. STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 eet.t,a �9 Paul J. (Smith Chair Pennsylvania State Ethics Commission