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HomeMy WebLinkAbout88-002 McHughGary DiVito, Esquire c/o Patrick M. McHugh, Esquire Suite 1510, Two Penn Center Plaza 15th & JFK Boulevard Philadelphia, PA 19102 1. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DATE DECIDED: 4 -8 -88 DATE MAILED: 4 -21 -88 88 -002 Re: Statement of Financial Interests, Full -Time Publicly Employed Attorney Dear Mr. McHugh: This opinion is issued pursuant to your appeal of the Advice of Counsel, No. 87 -632 issued November 19, 1987. Whether, the former Chief Counsel for the Pennsylvania Liquor Control Board is required to file a Statement of Financial Interests pursuant to the State Ethics Act. You represent Mr. Gary DiVito who is the former Chief Counsel for the Pennsylvania Liquor Control Board (LCB). You state that Mr. DiVito, as a former public employee, has refused to file the Statement of Financial Interests. You further state that the decision of the Pennsylvania Supreme Court in Maunus and Thau v. State Ethics Commission, Pa. Commw. Ct. , 515 A.2d 83, (1986), will be dispositive of this issue. The issue which you presented was originally processed as a request for an Advice of Counsel, and as a result on November 19, 1987, Advice No. 87 -632 was issued. That advice concluded, that as former Chief Counsel to the Pennsylvania Liquor Control Board, Mr. DiVito was a public employee within the purview of the State Ethics Act and that he was therefore, required to file a Statement of Financial Interests in conformity with that law on or before May 1 of each year in which he served and for the year after he left such position. Patrick M. McHugh, Esquire Page 2 On November 30, 1987, this Commission receives; your letter of November 27, 1987, wherein you requested that the full Commission review the Advice cif Counsel. By letter of December 8, 1987, you were notified that your appeal would be presented to the Commission which would issue an Opinion. III, Discussion: Initially, it is noted that you do not challenge the fact that Mr. DiVito was a public employee as that term is defined in the State Ethics Act. As such, this Commission does not believe it s necessary, at this point :n time, to analyze his duties, functions and responsibilities in order: -T-13 determine if, in fact, he is a covered employee. Philips 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 Mr. DiVito was a public employee as that term is defined in the State Ethi :s Act. 65 P.5. §402. When Mr. DiVito, terminated his employment with the LCB, ha became a former public employee. Wagert v. State Ethics Commission, 491 Pa. 255, 420 A.2d 439 (1980). The sole basis which you assert in support of the argument that Mr. DiVito is 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 him by any branch of government other than the Supreme Court of Pennsylvania. You argue that he is responsible only to that body and that any other restriction upon his conduct generally would be a violation of the Pennsylvania Constitution. The argument which you have raised in this particular situation is the sane argument that has also been raised by other attorneys who currently or formerly served :ith the Liquor Control Board. These issues have been specifically addressed by this Commission in Thau, 84 -020A, Maunus, 84-020B and Skelly /Diehl, 86 -006. An appeal, docketed at 3362 C.D. 1986 in Commonwealth Court, was taken from this Commission's Opinion in Skelly /Diehl, supra which has been continued, at petitioners' request, pending the disposition of Maunus /Thau, supra. As you have pointed out, this issue is currently pending before the Pennsylvania Supreme Court in Maunus /Thau v. State Ethics Commission, supra. Since allocator has been granted by the Pennsylvania Supreme Court in Maunus /Thau, 38 M.D. 1987, the allowance of the State Ethics Commission's appeal acts as a supersedeas to the Opinion and Order of the Commonwealth Court in Maunus /Thau v. State Ethics Commission, Pa. Commw. Ct. , 515 A.2d 83 (1986). See Pa. R.A.P. 1701. While it is believed that the Commission's position has been specifically set forth in relation to the issues that you have raised in the aforecited opinions and the briefs presented to the Court, the Commission will nevertheless reassert its position in relation to this i ssue. Patrick M. McHugh, Esquire Page 3 You specifically have argued that two cases, in particular, lend support for the position that even a full -time publicly employed attorney is exempt from the 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 conformity with prevailing legal principles, the Supreme Court decision is the law that must currently be applied : "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 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. Comm.,. 442, 314 A.2d 887, (1974). Patrick M. McHugh, Esquire Page 4 Therefore, the Ballo decision is clearly not on point or controlling in the instant matter. In addition to the foregoing, consideration must be given to the Supreme Cow t's decision in Snyder v. Unemployment Compensation Board of Review, Pa. , 502 A.2d 1232, 1985). In Snyder, the Pennsylvania Supreme Court specTf c� ally 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 terns 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 conformity 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 addition to the foregoing, regarding the Snyder decision, 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, Snyder supra, cannot be considered as controlling precedent in the instant matter. Patrick M. McHugh, Esquire Page 5 In the recent decision of the Pennsylvania Supreme Court In the matter of: Glancey and Chiovero, Pa . A (1987), filed at Nos. 116 and 118 E.D. 1987, the Court noted the following regarding the limitation of the Ethics Act as to judges: "Notwithstanding the laudable purpose of the Ethics Act this Court, in Kremer v. State Ethics Commission, 503 Pa. 358, 469 A.2d 593 (1983), was constrained to hold the statute unconstitutional to the extent that it applied to judges, because of the doctrine of separation of powers. The basis for our holding in Kremer was not that theact did not address a compelling state interest or violated personal rights, but rather that the extension of the statute to judges unconstitutionally infringed upon the exclusive power of this Court to supervise the judicial branch of government and its officers. 503 Pa. at 361, 469 A.2d at 595. We also pointed out that pursuant to our supervisory power over the judiciary this Court had adopted the Code of Judicial Conduct, whose provisions effectively address the very interests the legislature sought to advance with the Ethics Act. Id. at 363, 469 A.2d at 595 -96. Indeed, the statement of policy, purpose, and philosophy set forth in the Commentary to Canon 2 of the Code, supra, is essentially the same as the declaration of purpose underlyi ng the Ethics Act. Thus, under both systems of regulation, requiring the disclosure of gifts of a certain value is designed to assure the people of the impartiality and honesty of office holders, and to promote public confidence." Id. at 9, 10. In the instant situation, this Commission believes that there is no conflict between any court rule and the State Ethics Act. In this regard, it is most important to note the comment to Rule 1.11 of the New Rules of Professional Conduct which relates to successive government and private employment and which provides in part: "In addition, such a lawyer is subject to Rule 1.11 and to statutes and government regulations regarding conflict of interest." There are also equally persuasive 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. Patrick M. McHugh, Esquire Pace. 6 IV. Conclusion: This Commission is awGre that the issue which you have specifically presented, is currently on appea' to the Supreme Court of ?ennsylvania; however, :o date, no full -time publicly employed atterneys are exempt from the Ethics Act 5y a decision of a court of final appellate jurisdiction. This Commission has an obligation and is mandated by law to enforce the provisions of the State Ethics Act by a decision of a court of final appellate jurisdiction. See, State Ethics Commission v. Baldwin, 66 Pa. Commw. Ct. 4b, 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 you are issues which are most likely to be determined your favor. Additionally, the Commonwealth Court of Pennsylvania ha made no indication that they would issue any type of injunction or restraining order which would effect your client and all similarly situated individuals. Thus, while there are appeals pending in the Pennsylvania Supreme Court and Commonwealth Court, until this Commission is ordered to otherwise do co, this Commission will continue to enforce the provisions of the State Ethics Act as mandated by law. In that, you do not challenge the fact that Mr. DiVito was a full -time public employee of the Commonwealth of Pennsylvania and because this Commission believes the law, as applied in the instant situation, provides no exemption for Mr. DiVito, this Commission concludes that he is requir2d 2d to file a Statement of Financial Interests in accordance with the provisions, of the Sta Ethics Act. The former Chief Counsel for the Pennsylvania Liquor Control 3aard was a public employee as that term is defined in the State Ethics Act and a former ' public employee after he left public employment. The Ethics Act requires that such employee file Statements of Financial Interests on or before May 1 of each year in which he served and for the year after he left his position. To date, no final court cases have determined that full -time publicly employed Commonwealth attorneys are exempt from the Ethics Act coverage. While there are Pennsylvania Supreme and Commonwealth Court cases pending, this Commission is nonetheless required to enforce the provisions of the Ethics Act. As such, this Commission believes that Mr. DiVito is required to file a Statement of Financial Interests in conformity with the State Ethics Act. Said statement must be filed with the State Ethics Commission and with the Liquor Control Board 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 Comn;i ssion, and evidence of good faith conduct i n any civil or crimi nal proceed! ng, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. Patrick M. McHugh, Esquire Page 7 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, G. Sieber Pancoast Chai rma n