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HomeMy WebLinkAbout98-002 FosterJonathan P. Foster, Esquire 320 South Main Street PO Box 278 Athens, PA 18810 Dear Mr. Foster: I. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Boyd E. Wolff Julius Uehlein DATE DECIDED: 1/15/98 DATE MAILED: 1/26/98 98 -002 Re: Conflict, Public Official /Public Employee, Solicitor, Retained /Employed, Borough, Joint Code Enforcement Program, Purchase of Property, Access, Public Right -of- Way, Public Safety. This Opinion is issued in response to your advisory request letters dated November 20, 1997 and December 12, 1997. Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a municipal Solicitor who is retained, as opposed to being an employee of the governmental body, with regard to advising the governmental body on public safety issues related to a property which the Solicitor is in the process of buying. II. FACTUAL BASIS FOR DETERMINATION: As the Solicitor for the Borough of Athens in Bradford County, Pennsylvania, and as Solicitor for the Joint Code Enforcement Program in which the Borough of Athens participates, you seek an advisory opinion from this Commission. You are in the process of relocating your private law office to another building in downtown Athens. You are also in the process of buying that building /property. The building /property has been the subject of litigation between the present property owners and the adjoining neighbor. The litigation concerned the right -of -way and access to the rear of the building. The local County Court decided the ownership Foster, 98 -002 January 26, 1998 Page 2 issues involving the property. However, you feel that there are certain public safety issues which must be resolved. You contend that the Borough should condemn certain areas as a public right -of- way and open up the rear access to the building to provide an escape route from the building as well as safe passage for rescue personnel. However, you are concerned that any advice which you would give as Solicitor in this matter, either to the Borough or to the Code Enforcement Officer, could be construed as a conflict of interest based upon your impending purchase of the building. It is your intention to request an advisory opinion from the appropriate committee of the Pennsylvania Disciplinary Board. However, you ask this Commission how you should proceed under the Ethics Law. You also ask whether your wife, who will be co -owner of the property, may request any action from the Borough to correct the safety problem. You have advised this Commission that both in your capacity as Solicitor for the Borough of Athens and as Solicitor for the Joint Code Enforcement Program in which the Borough of Athens participates, you are retained as an independent contractor and are not an employee. III. DISCUSSION: The status of Solicitors under the Public Official and Employe Ethics Law ( "Ethics Law "), Act 9 of 1989, P.L. 26, 65 P.S. §401 el seq., has recently been clarified by the appellate courts of Pennsylvania. In C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Commw. Ct. 1997), based upon an analysis of prior precedents including Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981), Maunus v. State Ethics Commission, 518 Pa. 592, 544 A.2d 1324 (1988), and P.J.S v. State Ethics Commission, 669 A.2d 1105 (Pa. Commw. Ct. 1996), appeal pending, No. 0091 M.D. Appeal Docket 1997, the Commonwealth Court of Pennsylvania set forth its view that a municipal Solicitor who is retained as opposed to being an employee of the governmental body is not a "public official" or "public employee" as defined in the Ethics Law and is not subject to the conflict of interest provisions of the Ethics Law. The Court stated: ... [T]his court pointed out in P.J.S. that the General Assembly did not add or include "solicitors" in its definitions of "public employees" or "public officials" whose conduct is regulated by section 3 of the Ethics Act. Id. As such, this court stated that it could not conclude that it was clearly the General Assembly's intent to include "solicitors," who are not normally full -time public employees, but more like consultants, among the class of persons required to comply with the regulations regarding ethical and professional conduct under section 3 of the Ethics Act. Id. Based upon our review of the pleadings in this case and our analysis of Baiou, Maunus and P.J.S., we conclude that CPC's conduct Foster, 98 -002 January 26, 1998 Page 3 is not governed by the provisions of the Ethics Act and that he is not subject to the jurisdiction of the Commission. C.P.C. v. State Ethics Commission, supra, 698 A.2d at 159. The Court further stated, in a footnote: We note that on July 3, 1997, this court issued its decision in P.J.S. v. Pennsylvania State Ethics Commission, 697 A.2d 286 (Pa. Cmwlth. 1997) (P.J.S. //), this court reiterated that the conflict of interest provisions of section 3 of the Ethics Act apply to solicitors who are public employees and not just on retainer. P.J.S. was hired as a full - time solicitor for the City of Erie, was placed on the City payroll, was paid a salary and received the same benefits as other employees of the City. Like the Commonwealth attorneys in Maunus, P.J.S.'s status with the City was that of an employee rather than a consultant on retainer or an independent contractor. Accordingly, this court determined that P.J.S. was a public employee who was covered by section 3 of the Ethics Act. The present case is distinguishable from P.J.S. // in that CPC is not a full -time, salaried employee of the borough who receives the same benefits as other borough employees. Rather, CPC is a legal advisor or consultant on retainer to the borough. As such, his conduct is not covered by section 3 of the Ethics Act. I� L , at Note 10. This Commission filed a Petition for Allowance of Appeal in the C.P.C. case, which Petition was denied. No. 614 M.D. Allocatur Docket 1997 (Pa. December 2, 1997). Therefore, C.P.C. is controlling on this jurisdictional issue. Accordingly, we are constrained to hold that as a municipal Solicitor who is retained by — as opposed to being an employee of — the Borough of Athens and the Joint Code Enforcement Program in which the Borough of Athens participates, you are not a public official /public employee subject to the conflict of interest provisions of the Ethics Law. However, it continues to be our interpretation of the Ethics Law that a ll Solicitors are required to file Statements of Financial Interests. 65 P.S. §404(a). Therefore, you are required to file Statements of Financial Interests providing full disclosure as required by Sections 4 and 5 of the Ethics Law, each year such positions are held and the year following termination of service in such positions. Moreover, it is this Commission's view that every "person" is subject to Section 3(b) of the Ethics Law. Section 3(b) of the Ethics Law essentially provides that no "person" shall offer or give to a public official, public employee, or nominee or candidate for public office, or to a member of such an individual's immediate family, or to a business with which such an individual is associated, anything of monetary value based upon the offeror's /donor's understanding that the vote, official action, or judgement of the public official, public employee, or nominee or candidate for public office would be influenced thereby. We hold that a Solicitor, though not himself a public official /public employee, may not engage in such conduct in his capacity as a Foster, 98 -002 January 26, 1998 Page 4 "person." Of course, reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to your inquiry in light of the aforesaid developments in case law. Based upon the above, your other inquiries need not be addressed. Lastly, 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. Specifically not addressed herein is the applicability of the Borough Code or the Rules of Professional Conduct. Conclusion: A municipal Solicitor who is retained by — as opposed to being an employee of — the governmental body is not a public official /public employee subject to Section 3(a) of the Ethics Law. However, all Solicitors are required to file Statements of Financial Interests pursuant to Sections 4 and 5 of the Ethics Law. Furthermore, Section 3(b) of the Ethics Law applies to all "persons" including "persons" who happen to be Solicitors, regardless of whether they are public officials /public employees. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. This letter is a public record and will be made available as such. 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. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, OYOAUSAU Daneen E. Reese Chair