Loading...
HomeMy WebLinkAbout84-020-B MaunusMs. Eileen Maunus 4267A Williamsburg Drive Harrisburg, PA 17109 Re: Appeal, Advice No. 84 -620 -B Dear Ms. Maunus I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 December 27, 1984 OPINION OF THE COMMISSION 84 -020B You present an appeal from the Advice of Counsel No. 84 -620 -B (incorporated herein by reference) and pose the question of whether this Advice is correct in concluding that as an Attorney I with the Liquor Control Board, hereinafter the LCB, you are to considered a "public employee" as that term is defined in the State Ethics Act and in ruling that you are not, as an attorney, exempt from the financial reporting and disclosure requirements of the State Ethics Act. Advice of Counsel No. 84 -620 -B concluded that you are a "public employee" in your capacity as an Attorney I with the LCB. The factual portion of that Advice will not be repeated here. Additionally, that Advice, issued on October 16, 1984, indicated that you are not exempt from the financial reporting and disclosure requirements of the State Ethics Act under any applicable and dispositive precedent or on any constitutional arguments that you have raised. In our response here we indicate that we have reviewed that advice and its conclusion along with your job description and the information submitted to support your request and your appeal. We incorporate these items here by reference as if fully set forth. Ms. Eileen Maunus December 27, 1984 Page 2 III. Applicable Law: The Law to be applied to this question is as follows: Section 2. Definitions. "Public employee." 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) inspecting, licensing, regulating 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. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. Section 1.1. Definitions. Public employee - -- (i) The term includes any individual: (A) who is employed by the Commonwealth or a political subdivision and who is responsible for taking or recommending official action of a nonministerial nature with regard to: (I) contracting or procurement; (II) administering or monitoring grants or subsidies; (III) planning or zoning; (IV) inspecting, licensing, regulating, or auditing any person; or Ms. Eileen Maunus December 27, 1984 Page 3 IV. Discussion: (V) any other activity where the official action has greater than a de minimus economic impact; and (B) who meets the criteria of either subclause (I) or (II): (I) The individual is: ( -a -) a person who normally performs his responsibility in the field without on -site supervision; ( -b -) the immediate supervisor of a person who normally performs his responsibility . in the field without on -site supervision; or ( -c -) the supervisor of any highest level field office. (II) The individual is a person: ( -a -) who: ( -1 -) has the authority to make final decisions; Initially we note that neither your letters of August 14, 1984 and August 23, 1984 in which you originally presented your request for advice nor your letter of appeal from that Advice dated October 23, 1984 present any question or challenge to the conclusion that you fall within the category of "public employee" as outlined in the advice issued to you. Basically, as we contend to understand your argument raised in both your request and your appeal, that as an attorney you are exempt from the financial disclosure requirements of the Act. Consequently, we will not address or review the propriety of the ruling of counsel as to the question of whether you are statutorily included within the category of "public employee" as you have not raised any challenge to that conclusion. Thus, the conclusions of counsel that absent any exemption, you would as an Attorney I with the LCB be considered a "public employee" will not be further reviewed in this Opinion. Ms. Eileen Maunus December 27, 1984 Page 4 With respect to your argument that as an attorney you should be exempt from the financial reporting and disclosure provisions of the State Ethics Act, we note that you rely upon the ruling of the Commonwealth Court in Ballou v. State Ethics Commission, 424 A. 2d 983, 56 Pa. Cmwlth. 240 (1981). It should be noted that this ruling of the Commonwealth Court was subject to further review by the Supreme Court and its ruling may found at Ballou v. State Ethics Commission, 496 Pa. 127, 436 A. 2d 186 (1981). A short review of these cases and their factual context and their conclusions is appropriate in reviewing your appeal. The above case arose when a township solicitor, Richard D. Ballou, filed a petition for declaratory judgment and injunctive relief seeking to be exempted from the financial reporting and disclosure requirements of the Ethics Act. The factual context in which this declaratory judgment was sought was clearly that the individual, Mr. Ballou, served as a solicitor to a county coroner, a municipal authority and several townships and he raised the question on the applicability of the Ethics Act to municipal solicitors and also the question of constitutionality of the financial reporting and disclosure requirements. Mr. Ballou's first argument was that he was not a "public employee" because he was an independent contractor and, therefore, not within the definition of "public employee" as contained in Section 2 of the Ethics Act, 65 P.S. 402. Essentially, Mr. Ballou argued that he did not fall within the class of "public employees" because he was not an "individual employed by the Commonwealth or a political sub- division." Similarly, Mr. Ballou argued that he was not a "public employee" because his duties as township solicitor did not include responsibility for taking or recommending as to official action. With respect to these two arguments the Commonwealth Court ruled that as a municipal solicitor, Mr. Ballou would be considered a "public employee" as defined in the State Ethics Act. Thus, absent any exemption, Mr. Ballou would have been found to be a "public employee" subject to the Ethics Act. However, the Court was also asked to address the question of whether the imposition of the provisions of the Ethics Act upon Mr. Ballou, as a municipal solicitor and an attorney was unconstitutional as an infringement upon the Supreme Court's exclusive power to govern the conduct of persons privileged to practice law in Pennsylvania. As to this argument, the Commonwealth Court agreed that the "subject of conflict of interest, including disclosure of financial interest has been fully regulated with respect to attorneys by the Supreme Court" and, therefore, held that the financial reporting and disclosure provisions of the Ethics Act, applied to attorneys, infringes upon the Supreme Court's inherent and exclusive power to regulate the conduct of attorneys. Therefore, the Commonwealth Court concluded that the preliminary objections of the State Ethics Commission should be overruled. Following the entry of final judgment in this matter, the State Ethics Commission appealed this ruling to the Supreme Court. Ms. Eileen Maunus December 27, 1984 Page 5 Upon review the Supreme Court issued an Opinion on October 3, 1981. This Opinion concluded as follows: "The order of Commonwealth Court is affirmed insofar as it directs judgment in favor of appellee (Ballou)." In its Opinion, the Supreme Court made it clear that they were not reviewing the conclusions of the Commonwealth Court as to the possibility that the application of the Ethics Act would constitute an unconstitutional infringement upon the Supreme Court's exclusive power to govern the conduct of persons privileged to practice law in Pennsylvania. Essentially, the Supreme Court chastised the Commonwealth Court for reaching, addressing, and deciding a constitutional issue when, as the Supreme Court found, the case could be properly decided and disposed of on non - constitutional grounds. Specifically, the Supreme Court in reviewing the case clearly based their determination on statutory, not constitutional grounds. The Supreme Court's ruling in effect concluded that an individual serving in the capacity of solicitor to a municipality was neither a public employee nor public official within the scope of the Ethics Act. Thus, it was unnecessary for the Commonwealth Court to have reached and for the Supreme Court, therefore, to review, the question of the constitutionality of financial reporting and disclosure requirements of the Ethics Act as applied to attorneys, in general. The Supreme Court's conclusion was basically that municipal solicitors are situated simil arily to members of advisory boards who, because they have no power to extend public funds or to otherwise exercise the power of the state, should not be considered to be "public employees" or in that context to be "employed by the Commonwealth" and to be responsible for taking or recommmending official action with respect to the categories listed in the definition of "public employee" under the Ethics Act. As noted above, in your particular case, you have not argued that you are not "employed by the Commonwealth" or "responsible for taking or recommending official action" with respect to the categories outlined in the definition of "public employee" within the Ethics Act. Therefore, based upon this concession, we find your situation to be factually, substantially different from that situation which was addressed by both the Commonwealth Court and the Supreme Court Ballou. We believe the Supreme Court's ruling in this case was limited to and exempted from the statutory definition of "public employee" or "public official" only those persons who served in the part -time capacity as independent contractors as solicitors with the municipality and that your factual situation is substantially different, or has not been challenged to this point and, therefore, is considered waived. Thus, even your reliance upon the Commonwealth Court's Ballou ruling may not be presented as persuasive or dispositive precedent because the factual circumstances, which you have not challenged in the present case, are substantially different from those which the Commonwealth Court itself was reviewing. Ms. Eileen Maunus December 27, 1984 Page 6 Accordingly, we agree with Counsel that the Commonwealth Court ruling is not dispositive, fully persuasive or binding with respect to the situation you present. Basically, we are not willing to nor do we have the power to declare the provisions of the Ethics Act unconstitutional or to concede that this power of the Supreme Court extends to or is applicable to this situation absent a clear and palpable demonstration of the unconstitutionality of these provisions as applied to your case and factual circumstances and absent cogent argument that the Commonwealth Court ruling in Ballou must be mandatorily observed and applied to your factual situation. Basically, no case which you present or argue in your appeal is identical on a factual basis or is clearly applicable to mandate the conclusion that the Legislature may not adopt and apply the Ethics Act and its financial reporting and disclosure provisions to full -time employees, such as yourself. This is especially true where, based upon Counsel's Advice and your lack of challenge thereto, you are otherwise within the definition of "public employee" as set forth in the Ethics Act. Lacking any specific dispositive or clearly, factually applicable or identical case or precedent, we conclude that your arguments and appeal on this score must be rejected. V. Conclusion: The Advice of Counsel No. 84 -620 -B is affirmed. We conclude, as did counsel, based upon the reasons expressed in that advice as adopted here and incorporated here by reference that you are to be considered to be a "public employee" in your capacity as an Attorney I with the LCB. We find that you are not exempt from this requirement of filing a Financial Interest Statement under any applicable, factually, identical or dispositive precedent or any constitutional arguments that you have raised above or here. If you have not already done so, a Statement of Financial Interests must be filed within fifteen days of this Opinion. This Statement of Financial Interests would report information for the prior calendar year. Please file the original such a Statement with this Commission to insure compliance with this Opinion, provide the yellow copy to your personnel office and retain the green copy for your records. 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 civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Ms. Eileen Maunus December 27, 1984 Page 7 Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. SSCJsfd cc: Daniel Pennick, Chairman Joseph Philip, Director By the Commission, E B. CONNER rman