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HomeMy WebLinkAbout81-010 WellsJ. Ernest Wells, Esq. Insurance Department 1342 Strawberry Square Harrisburg, PA 17120 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION September 28, 1981 RE: Application of Ethics Act, Chief Hearing Examiner Dear Mr. Wells: I. Issue: You question whether you are a public official or employee required to file a Financial Interest Statement by the Ethics Act. II. Factual Basis for Determination. - 81 -010 Procedurally, you were advised by the Office of Budget and Administration that you should file a Financial Interest Statement as required by the Ethics Act. You filed an appeal from that conclusion and an Advice of Counsel was issued to you on June 11, 1981, No. 81 -16A. You registered an appeal from this Advice. The State Ethics Commission conducted a meeting on September 23, 1981 at which you and a colleague, Mr. Strohecker, appeared. You provided factual and legal arguments to the Commission at that time. You are a member of the Bar employed by the Pennsylvania Insurance Department; your official job title is Hearing Examiner and you provided us with your official job descrip- tion which is incorporated here by reference. A Hearing Examiner is responsible for conducting formal administrative hearings on agent and company discipline appeals from policy form disapprovals as well as interpretation of and enforce- ment of Insurance Department regulations, consideration of company mergers and acquisitions. You are also involved in rate regulatory proceedings. Because of lack of staff and your experience in the field of construction bonding you occasionally provide legal advice to the Counsel for the Liquidation Department. At the time of hearing before the J. Ernest Wells September 23, 1981 Page 3 an agency is also deemed to be a "public official." See 51 Pa. Code. Your job description places you in such a relation ship to the Insurance Commissioner. Therefore, you are both a public employee and a public official. These will be discussed more fully below and support the ruling made at our meeting of September 23, 1981. Fundamentally, you are employed by the Commonwealth in its Insurance Department. You take official action i* the course of holding hearings and make recommendations t� the Commissioner of Insurance. These are clearly non - ministerial actions; equally clear is the fact that your decisions or recommendations regulate insurance companies and individuals in the Commonwealth. Additionally, decisions or recommendations about company mergers or rate making obviously have greater than de minimus economic impact on the interests of insurance companies, their shareholders and policy holders. Your duties are more than sufficient to bring you within the Act's definition of "public employee." It remains only to consider whether the fact that you are an attorney and perform duties equivalent to those of an Administrative Law Judge exempts you from the definition of "public employee" or "public official" category under the Act or our regulations respectively. The order of the Commonwealth Court in Ballou v. State Ethics Commission, 424 A.2d 938 (1980) is explicit: public efiployees and public officials serving as attorneys may not constitutionally be required to file Financial Interest Statements (emphasis added). Not every lawyer employed by the Commonwealth is necessarily serving as an attorney. Most importantly, you did not through your written documents or at hearing provide us with any evidence that you have been appointed as an attorney responsible for rendering legal advice to the Insurance Department as provided by the Commonwealth Attorney's Act. Act 164 of 1980 71 P.S. §732 - 201(c); 732 - 301(1) or 732 - 401. We cannot, therefore, assume that you are officially and legally serving as an attorney even though you may incidentally render legal advice on occasion. Further, assuming your duties make you an Administrative Law Judge in fact, if not in name, an Administrative Law Judge is not part of the integrated judiciary subject to the exclusive and inherent jurisdiction of the Pennsylvania Supreme Court. Thus, there is no logical or legal precedent to render application of the Ethics Act to your case invalid. Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 PENNSYLVANIA STATE ETHICS COMMISSION RESOLUTION Mr. James R. Doran served the citizens of the Commonwealth through membership on the State Ethics Com- mission from its inception to January 25, 1981. He served through the most difficult times: the beginning and early development stages for which no pre- cedent or guideline was available. His integrity, intelligence and good sense applied with objectivity and fairness significantly contributed to the success of the Commission. The Commission extends its appreciation and gra- titude and wishes him well in all of his endeavors. AUL J6/ SMITH Chairman State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania