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