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HomeMy WebLinkAbout95-010 FernanI. ISSUE: John R. Fernan, Esquire John H. Foradora, Esquire Fernan, Whitney & Masson P.O. Box 467 Ridgway, PA 15853 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn John R. Showers Boyd E. Wolff DATE DECIDED: 12/7/95 DATE MAILED: 12/15/95 95 -010 Re: Solicitor; Solicitor for County Row Officers; FIS; Appeal of Advice Dear Messrs. Fernan and Foradora: This Opinion is issued pursuant to the appeal of Advice of Counsel, No. 95 -612 issued October 25, 1995. Whether a solicitor for a county row officer is required to file Statements of Financial Interests under the Public Official and Employee Ethics Law. II. FACTUAL BASIS FOR DgTERMINATION: By FAX transmission received on November 13, 1995, you appealed Advice of Counsel, No. 95 -612 issued October 25, 1995. By letter dated November 20, 1995, you were notified of the date, time and location of the public meeting. Fernan, John E., and Foradora, John H. December 15, 1995 Page 2 Advice of Counsel, No. 95 -612 concluded that as Solicitors for the Register and Recorder of Elk County and the Treasurer of Elk County, each of you would be required to file a Statement of Financial Interests for each year in which you hold these positions and for the year following termination of service. After noting that there is no judicial precedent on the precise issue which you have raised, the Advice of Counsel noted that the Commission has been directed to construe coverage of the Ethics Act broadly and to construe exclusions from such coverage narrowly. Phillips v. State Ethics Commission, 79 Pa. Commw. 491, 470 A.2d 659 (1984). The Advice of Counsel cited Powell, Opinion 89 -025, wherein this Commission held that the Solicitor for the Elk County Industrial Development Authority was subject to the requirement to file Statements of Financial Interests, as well as Confidential Opinion No. 94 -009 wherein this Commission held that a school district solicitor was a "public official /public employee" subject to the Ethics Law. The Advice further cited Section 4(a) of the Ethics Law, 65 P.S. §404(a), which requires public officials /public employees and specifically solicitors for political subdivisions to file Statements of Financial Interests, as well as the definition of "political subdivision," which specifically includes counties. 65 P.S. §402. The Advice summarized your argument as being that solicitors for county row officers are not required to file because the definition of "political subdivision," which specifically includes counties, does not specifically enumerate county row officers. The analysis of the Advice was that as Solicitors for Elk County row officers, your existence as well as the existence of the row officers is prescribed by the County Code. It was stated that Elk County row officers do not exist independently of Elk County and that therefore, as Solicitors for these Elk County officers, "you are Solicitors "for" the County." Id. at 4. The Advice cited the Statutory Construction Act of 1972 as providing that it is not the intention of the General Assembly that a statute be construed in such a way as to reach an absurd result or one that is "impossible of execution or unreasonable." 1 Pa.C.S. §1922(1). The Advice further noted the rules of Statutory Construction which would require that the Ethics Law be construed to ascertain and effectuate the General Assembly's intent, 1 Pa.C.S. §1901, and that words which are not defined, such as the word "county" which would be particularly significant in this case, must be construed according to their common and approved usage. 1 Pa.C.S. §1903. The Advice opined that your interpretation of Section 4(a) and the definition of "political subdivision" set forth in the Ethics Law would lead to an absurd result, such that each and every division and unit in local, county and state government would have to be set forth at length in the statutory definition of "political Fernan, John E., and Foradora, John H. December 15, 1995 Page 3 subdivision" to reach the General Assembly's intended effect, and that under the present definition, high level public officials such as Commonwealth cabinet heads could decline to file the form, on the basis that they serve their individual agency rather than the "Commonwealth." Finally, the Advice of Counsel responded to an argument which you had raised -- that by filing the form you would violate the Ethics Law -- by noting that even if your theory were to be accepted, voluntary filings are permitted by the Ethics Law. 65 P.S. §407(4). The Advice cautioned that such was not to be construed as viewing your filing to be voluntary. In your letter appealing the Advice of Counsel, you have presented the following arguments. You state your belief that your position as set forth in your original request for advice, dated September 22, 1995, is correct according to law and that the Advice of Counsel is erroneous. With regard to the conclusion of the Advice of Counsel that as Solicitors for Elk County row officers you are Solicitors "for" the County, you state that at least one of you has represented row officers at various times in the past. One of you served as Elk County Solicitor for the period 1976 to 1980. You note that during that time, there was litigation directly between Elk County row officers and Elk County, and you have provided a list of five such lawsuits, each of which names an Elk County row officer and either the Elk County Commissioners or Elk County as parties. You note that several times lawsuits were avoided by negotiations between the row officers and the County through their Solicitors. You cite the Rules of Professional Conduct, specifically Rule 1.7, which provides that an attorney may not simultaneously represent two competing clients in a controversy. You state that whenever either of you has represented a row officer in any one of the aforesaid lawsuits, you did not represent the County of Elk and were not Solicitor for the County. In each case where one of you represented a row officer, the County Solicitor or special counsel assisting the County Solicitor was the Solicitor "for" the County. You note that every case was "hard fought" even if it ultimately settled prior to trial. You state that it would be ludicrous to suggest that in any of the lawsuits, the attorney for the row officer was the Solicitor "for" the County. You additionally note that as Solicitor for a row officer, there is frequently representation of that row officer which is clearly antagonistic to the County. You cite as an example instances where either of you have appeared as Solicitor for row officers seeking a pay increase from the County Salary Board. You state that the attorney cannot simultaneously be Solicitor "for" the County. You state that when either of you advises the County Fernan, John E., and Foradora, John H. December 15, 1995 Page 4 Treasurer not to sign County checks signed by the County Commissioners, you clearly are not acting as Solicitor "for" the County. As a further example, you state that when either of you participates in probate proceedings either as advisor to the Register of Wills or as hearing officer acting on behalf of the Register of Wills, you are clearly not acting as Solicitor "for" the County. You cite the portion of the Advice of Counsel which noted that the existence of the Elk County row officers is statutorily prescribed by the County Code, and that such officers do not exist independently of the County but are within and are part of the Elk County government. Fernan /Foradora, Advice of Counsel, No. 95 -612 at 4. You state your view that this conclusion would "fly in the face" of the following language in the Pennsylvania Constitution: County officers shall consist of commissioners, controllers or auditors, district attorneys, public defenders, treasurers, sheriffs, registers of wills, recorders of deeds, prothonotaries, clerks of the courts, and such others as may from time to time be provided by law. Pennsylvania Constitution, Article 9, § 4. Thus, you state that the Register of Wills, Recorder of Deeds, Clerk of Orphan's Court, and Treasurer are constitutional offices and not merely statutory offices. You conclude your letter of appeal by asserting that the Ethics Law "should not be stretched to include persons clearly beyond its purview." Letter of November 13, 1995, at 3. III. DISCUSSION: The issue before us is whether, as Solicitors for the Register and Recorder of Elk County and the Treasurer of Elk County, you are subject to the requirement of the Ethics Law to file Statements of Financial Interests. Our review of this matter is de novo. However, having thoroughly reviewed the Advice of Counsel, your initial request for an advisory, and your letter of appeal, we find that the arguments supporting each side of this issue have been thoroughly presented in the documents before us. We begin our analysis by reviewing the pertinent provisions of the statute. Section 4(a) of the Ethics Law provides as follows: Section 4. Statement of financial interests Fernan, John E., and Foradora, John H. December 15, 1995 Page 5 required to be filed (a) Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 P.S. §404(a). The term "political subdivision" is defined as follows: Section 2. Definitions "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the afore- mentioned. 65 P.S. §402. As the Advice of Counsel noted, we have some precedents under Act 9 of 1989 which pertain to Solicitors. In Powell, Opinion 89- 025, we held that the Solicitor for the Elk County Industrial Development Authority was subject to the filing requirement. However, that Authority was organized by Elk County and therefore was indisputably within the definition of political subdivision. In Confidential Opinion No. 94 -009, we held that a School District Solicitor was a "public official /public employee" subject to the Ethics Law. See also, apataro, Opinion 89 -009. It is our view that a solicitor is a "public official /public employee," and this status affords a separate and independent basis for concluding Fernan, John E., and Foradora, John H. December 15, 1995 Page 6 that you are required to file Statements of Financial Interests pursuant to the Ethics Law. However, in this Opinion, we do not reach that issue based upon our disposition of the other issues which have been raised. The Advice and your letters have focused upon the final sentence of Section 4(a) which provides as follows: "Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section." 65 P.S. §404(a). The question is whether county row officers are to be viewed as part of the political subdivision of the county and consequently, whether, as Solicitors for Elk County row officers, you are solicitors "for" Elk County. Having reviewed all of the arguments which have been advanced, we are constrained to affirm the Advice of Counsel and deny your appeal. It is clear to us that your argument confuses being a Solicitor "for" the County with being the County Solicitor. Your status as Solicitors working "for" Elk County is not negated by the fact that you render your services to only certain County officers. We agree with the Advice of Counsel that a given political subdivision may and usually is itself comprised of numerous divisions, units and offices which may require separate legal representation, yet all are still part of that same political subdivision. It is our view that the attorneys for those entities are likewise attorneys for the political subdivision itself, even though, within the parameters of the Rules of Professional Conduct, they may at times be representing different and conflicting interests. Furthermore, in interpreting the Ethics Law, this Commission is not required to consult or give deference to your profession's Rules of Professional Conduct. It is significant that you, and the County row officers who retain you, are paid by the County, with County checks, from County funds, pursuant to budgets (which include salaries) submitted to the County for County approval. Without the County, none of you would get paid. Pursuant to Section 4(a), Statements of Financial Interests are to be filed with the governing authority of the political subdivision by which the individual is employed or within which he is elected or appointed. In this case, that political subdivision is clearly Elk County. Finally, as for the fact that the existence of county row officers is not only statutorily provided but is also constitutionally provided, the point merely adds further support to our conclusion that county row officers are in fact part of the county and do not exist independently of it. Indeed, they are Fernan, John E., and Foradora, John H. December 15, 1995 Page 7 county officers not only by virtue of a statute but by mandate of the Pennsylvania Constitution itself. We agree with the statutory construction analysis set forth in the Advice of Counsel and conclude that in your respective capacities as Solicitors for the Elk County Register of Wills, Recorder of Deeds, and Treasurer, you are required to file Statements of Financial Interests pursuant to Section 4(a) of the Ethics Law. The appeal is denied and Advice of Counsel, No. 95 -612 is affirmed. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. IV. CONCLUSION: A solicitor for a county row officer is required to file a Statement of Financial Interests for each year the position is held and for the year following termination of service. The appeal of Advice of Counsel, No. 95 -612 is denied. Advice of Counsel, No. 95 -612 is affirmed. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. y the Commis 'on, 0MA/us/KJ Daneen E. Reese Chair