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