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HomeMy WebLinkAbout86-006 SkellyKenneth B. Skelly Chief Counsel Liquor Control Board 406 Northwest Office Building Harrisburg, Pennsylvania 17124 II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DECIDED AUG 2 0 1966 MAILEQ 26 v886 86 -006 Faith S. Diehl, Attorney Liquor Control Board 406 Northwest Office.Building Harrisburg, Pennsylvania 17124 Re: Statement of Financial Interests, Full -Time Publicly Employed Attorney Dear Mr. Skelly: This opinion is issued pursuant to your appeals of the Advice of Counsel, No. 86 -582 issued July 9, 1986. I. Issue: Whether, the Chief Counsel and an Attorney II for the Pennsylvania Liquor Control Board are required to file a Statement .of Financial Interests in accordance with the provisions of the State Ethics Act. You recently were appointed as the Chief Counsel for the Pennsylvania Liquor Control Board. On or about April 28, 1986, you forwarded to the State Ethics Commission a financial disclosure appeal form wherein you indicated that you were declining to file a Statement of Financial Interests in accordance with the State Ethics Act pending the resolution of a Commonwealth Court case involving two other attorneys employed by the Liquor Control Board. That appeal form was received on May 8, 1986. The issue which you presented was originally processed as a request for an Advice of Counsel, and, as a result, on July 9, 1986, Advice No. 86 -582 was issued. That advice concluded, that as Chief Counsel to the Pennsylvania Liquor Control Board, you were a public employee within the purview of the State Ethics Act and that you were, therefore, required to file a Statement of Financial Interests in accordance with that law on or before May 1 of each year in which you serve. Kenneth B. Skelly, Chief Counsel Faith S. Diehl, Attorney Page 2 On July 24, 1986, the State Ethics Commission received a request that the full Commission review the aforementioned Advice of Counsel. Specifically, pursuant to your letter of appeal, you indicate that you have no challenge to the fact that you are indeed a public employee. You indicate, however, that as an attorney, admitted to the practice of law in the Commonwealth of Pennsylvania, you are exempt from the provisions of the State Ethics Act. The basis of your position, as set forth in your letter, is that the Advice of Counsel is contrary to applicable law and that it directly contradicts several decisions of the Pennsylvania Courts concerning the power of the Legislature to control the conduct of attorneys and the practice of law. In this respect, you have cited Ballou v. State Ethics Commission, 56 Pa. Commw. Ct. 240, 424 A.2d 983, (1981); and Snyder v. Unemployment Compensation Board of Review, Pa. , 502 A.2d 1232, (1985). You assert, that based upon these two judicial decisions, the Pennsylvania Supreme Court has declared that it has the inherent and exclusive power to regulate the conduct of attorneys and that these cases must be applied to you even though you serve as a full -time publicly employed attorney. On August 12, 1986, we also received a financial disclosure appeal form from Faith S. Diehl, an Attorney II with the Liquor Control Board. Ms. Diehl has asserted the same exact arguments as Mr. Skelly. As such, we will incorporate the appeal of Ms. Diehl in the instant opinion. III. Discussion: Initially, we note that you have conceded the fact that you are a public employee as that term is defined in the State Ethics Act. As such, this Commission does not believe it is necessary, at this point in time, to analyze your duties, functions and responsibilities in order to determine if, in fact, you are a covered employee. Phili•s v. State Ethics Commission, 79 Pa. Commw. Ct. 491, 470 A.2d 659, (1984). In light of the fact that you have failed to raise this issue before the Commission, we conclude that you are a public employee as that term is defined in the State Ethics Act. 65 P.S. §402. The sole basis which you assert in support of the argument that you are exempt from the provisions of the State Ethics Act is that as a practicing attorney in the Commonwealth of Pennsylvania, no laws, rules, regulations, or other restrictions may be placed upon you by any branch of government other than Supreme Court of Pennsylvania. You argue that you are responsible only to that body and that any other restriction upon your conduct generally would be a violation of the Pennsylvania Constitution. In support of this argument you cite several cases as noted in the facts. The argument which you have raised in this particular situation is the same argument that has also been raised by two other attorneys currently serving the Liquor Control Board. These issues have been specifically addressed by this Commission in Thau, 84 -020A and Maunus, 84 -020B. In fact, the issues which you nave raised are currently pending before the Commonwealth Court of Pennsylvania. Thau and Maunus v. State Ethics Commission, 277 C.D. 1985, (Commonwealth Court). While Kenneth B. Skelly, Chief Counsel Faith S. Diehl, Attorney Page 3 we believe that the Commission's position has been specifically set forth in relation to the issues that you have raised in both the aforecited opinions and the briefs presented to the Commonwealth Court, we will nevertheless reassert our position in relation to this issue. You specifically argue that two cases, in particular, lend support for the position that even as a full -time publicly employed attorney you are exempt from Ethics Act coverage. Initially, you submit that in Ballou v. State Ethics Commission, 56 Pa. Commw. Ct. 240, 424 A.2d 983, (1981); it was determined that full -time publicly employed attorneys are exempt from Ethics Act coverage. In Ballou, the Commonwealth Court of Pennsylvania indeed ruled that the financial disclosure requirements of the Ethics Act, as applied to attorneys serving as municipal solicitors, infringed upon the inherent power of the Supreme Court to regulate the conduct of attorneys and the Ethics Act as applied was, therefore, declared unconstitutional. The Supreme Court of Pennsylvania, however, while affirming the result, i.e., that municipal solicitors were not required to file Statements of Financial Interests, did so on different grounds. Ballou v. State Ethics Commission, 496 Pa. 127 436 A.2d 186, (1981). The Supreme Court specifically held that attorneys serving as municipal solicitors were not "public employees" within the definition of the State Ethics Act, 65 P.S. §402, and, therefore, not required to file. The Court expressly refused to address the constitutional issue and stated that: Our decision is limited to the application of the Ethics Act to attorneys serving in appellee's capacities. Not presented on this record is the application of the act to any others serving in the public sector as attorneys. See, e.g., Knup v. City of Philadelphia, 386 Pa. 350, 353, 126 A.2d 399, 400 (1956) ( "a court. . . does not undertake to decide academically the unconstitutionality or other alleged invalidity of legislation until it is brought into operation so as to impinge upon the rights of some person or persons "). 496 Pa. 127, at 130. The Supreme Court, clearly issued the Ballou ruling on grounds different than those relied upon by the Commonwealth Court. In accordance with prevailing legal principles, the Supreme Court decision is, thus, the law that must currently be applied. It is clear that: Stare decisis applies only to those questions of law which have been actually considered and decided by the courts of last resort of the jurisdiction where the Kenneth B. Skelly, Chief Counsel Faith S. Diehl, Attorney Page 4 principle is invoked. Decisions of other courts therein, whatever their authority, are not stare decisis of any question, no matter how carefully it was considered. Brolasky's Estate, 302 PA 439, 153 A 739, (1931); See also, Hill & MacMillan v. Taylor, 304 PA 18, 155 A 103, (1931); City of Pittsburgh v. Public Parking Authority of Pittsburgh, 11 P. Commw. 442, 314 A.2d 887, (1974). Therefore, the Ballou decision is clearly not on point or controlling in the instant matter. In addition to the foregoing, you have also cited, in support of your position, a recent Supreme Court decision, Snyder v. Unemployment Compensation Board of Review, Pa. , 502 A.2d 1232, (1985). In Snyder, the Pennsylvania Supreme Court specifically reviewed Section 10 of the State Ethics Act which provides as follows: Section 10. Court employees. Nothing in this act, or in any other law or court rule shall be construed to prohibit any constable or any employee of a court of common pleas, the Municipal Court of Philadelphia, the Traffic Court of Philadelphia, or any employee of a district justice from also being an officer of a political body or political party as such terms are defined in the act of June 3, 1937 ('P.L. 1333, No. 320), known as the "Pennsylvania Election Code," and the same may hold the office of a county, State or national committee of any political party, and may run for and hold any elective office, and may participate in any election day activities. 65 P.S. 410. The Court ruled that the above provision was unconstitutional insofar as it conflicted with a court administrative directive forbidding partisan political activity. Initially, it should be noted that this case did not apply or in any way deal with public employees who served outside of the judicial branch. Additionally , , the court specifically ruled that its decision was applicable only insofar as the Ethics Act had applied to "any person effected by this court's directive ". Thus, the court specifically found that the Ethics Act had conflicted with a judicial rule. This, of course, is in accordance with the Pennsylvania Constitution, Pa. Const. Art. v., Section 10(c). That provision of the Pennsylvania Constitution provides that where a conflict exists between a rule of the court and a statutory enactment, the rule of the court shall supersede. Thus, the court found an actual conflict, thereby invalidating the provision of the Ethics Act as applied. In the instant situation, this Commission believes that there is no conflict between any court rule and the State Ethics Act. Indeed, there are equally persuasive Kenneth B. Skelly, Chief Counsel Faith S. Diehl , Attorney Page 5 constitutional provisions which seem to indicate that the General Assembly of Pennsylvania may enact legislation in relation to the public employment of individuals and provide for rules, regulations and laws in relation to those employees. See e.g., Pa. Const. Art. 9 §1, 3,; Pa. Const. Art. 3 §17. In addition to the foregoing, while you have cited Snyder in support of your case, you have failed to recognize the fact that more recently a lower court has specifically pointed out that a careful reading of the Snyder opinion indicates that a majority of the Justices of the Supreme Court did not join in the resolution of the Ethics Act issue. Therefore, the Snyder opinion, insofar as it deals with Section 10 of the Ethics Act, was not controlling in resolving any question in relation to the Ethics Act. See, In Re: Fischio, 134 Pitts. L.J. 229, (1986). Thus, the principle for which you cite Snyder, in addition to not supporting your argument was not issued by a majority of the Supreme Court and, therefore, cannot be considered as controlling precedent in the instant matter. While we are aware that the issue which you have specifically presented, is currently on appeal to the Commonwealth Court of Pennsylvania, to date, no ruling has been issued which indicates that attorneys who are full -time Commonwealth employees are exempt from the Ethics Act. This Commission has an obligation and is mandated by law to enforce the provisions of the State Ethics Act. See, State Ethics Commission v. Baldwin, 66 Pa. Commw. Ct. 40, 444 A.2d 767, (1982). At 769. There has been no indication, in the instant matter or during the course of the currently pending litigation, that the issues raised by both you and the petitioners in that matter are issues which are most likely to be determined in their favor. Additionally, the Commonwealth Court of Pennsylvania has made no indication that they would issue any type of injunction or restraining order which would effect you and all similarly situated individuals. Thus, while there is a Commonwealth Court appeal pending until we are ordered to otherwise do so, we will continue to enforce the provisions of the State Ethics Act as mandated by law. In that, you concede you are a full -time public employee of the Commonwealth of Pennsylvania and because we believe the law, as applied in the instant situation, provides no exemption for you, we conclude that you are required to file a Statement of Financial Interests in accordance with the provisions of the State Ethics Act. IV. Conclusion: The Chief Counsel and an Attorney II for the Pennsylvania Liquor Control Board are public employees as that term is defined in the State Ethics Act. The Ethics Act requires that such employees file Statements of Financial Interests on or before May 1 of each year in which they serve. To date, no court cases have determined that full -time publicly employed Commonwealth Kenneth R. Skelly, Chief Counsel Faith S. Diehl, Attorney Page 6 attorneys are exempt from Ethics Act coverage. While there is a Commonwealth Court case pending, which will resolve the issue that has been presented, we are nonetheless required to enforce the provisions of the Ethics Act. As such, we believe that you are required to file a Statement of Financial Interests in accordance with the State Ethics Act. Said statement must he filed with the State Ethics Commission and with the Liquor Control Roard within fifteen days (15) of the issuance of this opinion. 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. 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. By the Commission, sal. sg,.,._ G. Sieber Pancoast Chairman