HomeMy WebLinkAbout00-600 LambMichael E. Lamb
1015 Grandview Avenue
Pittsburgh, PA 15211
ADVICE OF COUNSEL
August 15, 2000
00 -600
Re: Conflict; Public Official /Public Employee; First Deputy Prothonotary; County;
Attorney; Private Employment or Business.
Dear Mr. Lamb:
This responds to your letter of July 8, 2000, by which you requested advice from
the State Ethics Commission.
Issue: Whether a first deputy prothonotary is prohibited or restricted by the Public
fficial and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., from working
with, being employed by or associated with a business /person in a private capacity in
addition to public service.
Facts: You are the First Deputy Prothonotary of Allegheny County. You were
appointed to this position when Michael F. Coyne was elected Prothonotary in 1992.
You are also an attorney admitted to practice law in the Commonwealth of
Pennsylvania.
The specific functions of the Prothonotary are largely governed by constitutional
provision and statute. The Prothonotary is an elected position ancillary to the Court of
Common Pleas mandated by the Schedule to Article V, §15 of the Constitution of the
Commonwealth of Pennsylvania. Under that provision, the Prothonotary "shall continue
to perform the duties of the office and to maintain and be responsible for the books and
dockets as heretofore." The Prothonotary may administer oaths and affirmations and
take acknowledgements relating to his role as records custodian. The Prothonotary
may also enter judgments and satisfactions of judgments.
Most actions taken by the Prothonotary are directed either by general rule or
specific court order, and any actions taken by the Prothonotary to which there is an
objection may be readily undone by bringing it to the attention of the Court. The
Prothonotary and Deputy Prothonotaries possess no adjudicative authority in that their
decisions do not affect the substantive rights of litigants.
Lamb, 00 -600
August 15, 2000
Page 2
In Allegheny County, the Prothonotary has been limited to receiving documents
and maintaining records of the Civil and Family Divisions of the Court of Common
Pleas. The First Deputy Prothonotary does not physically receive court filings or handle
moneys received by the office; rather, he generally oversees a staff of about 75 people
who work primarily to ensure that the manner in which the Prothonotary handles and
maintains records is consistent with the law. The First Deputy Prothonotary also
administers oaths of office for law enforcement personnel, assists in the development of
the Prothonotary's annual budget, and acts as a liaison between the Prothonotary and
the Court of Common Pleas and other courts, and various county government
departments and other government entities. Occasionally, the First Deputy
Prothonotary may make recommendations pertaining to increasing filing fees.
However, such increases must, by statute, be presented to the President Judge of the
Court of Common Pleas for review and approval.
You opine that the Prothonotary's record keeping function is essentially
ministerial and, therefore, the Deputy Prothonotary is not a "public employee" as defined
by Section 1102 of the Ethics Act. You contend that assuming that the First Deputy
Prothonotary is a "public official," a first deputy prothonotary who would engage
generally in the private practice of law while continuing his public employment would not
appear to be involved in "restricted activity" under the Act. After quoting portions of the
definitions of "public employee" and "public official" under the Ethics Act, you point out
that you do not concede that a deputy prothonotary is covered by the Ethics Act either
as a "public employee" or a "public official."
You argue that in your position as Deputy Prothonotary, you would not be using
the authority of office or employment for a private pecuniary benefit. You state that
since the Prothonotary's office has no legal or practical authority in the operations of the
myriad of tribunals before which a lawyer might advocate (other than civil and family
courts), the First Deputy Prothonotary has no opportunity to use the authority of office in
those agencies or to obtain confidential information from them based upon his office.
You state that the First Deputy Prothonotary has no greater access to or involvement
with the records of the Criminal Courts, Orphans' Courts, appellate courts, or of any
administrative agency than does any member of the general public.
You believe that the real issue is whether a deputy prothonotary may continue to
serve in that position while practicing law in the Court's civil and family divisions when
the Prothonotary manages the Court records. You point out that the Deputy
Prothonotary does not have access to confidential information, and has no inside
information as to substantive Court policies concerning scheduling and other matters.
You emphasize that the Prothonotary manages public records, which, by definition, are
available to anyone, and thus, are not confidential. You state that even in the case
where records are sealed by Court order, the Prothonotary and his staff do not have
access to those records.
You maintain that because access to Court records is equal, a Deputy
Prothonotary practicing law in a private capacity could not "abuse" public office to gain
an advantage over an adversary in litigation. You state that since the records are
public, it is safe to assume that an adversary would "police" them to protect his or her
own interests. You argue that because the role of the Prothonotary is ministerial, any
improper action can be readily controlled or even undone by the Court. Finally, you
assert that any improper conduct committed by a lawyer is strictly regulated by the
Rules of Professional Conduct.
Based upon the foregoing facts, you ask the following questions:
1) Whether a deputy prothonotary is a "public official" or "public employee" as
those terms are defined in the Ethics Act;
2) Assuming a deputy prothonotary is either a "public official" or "public
employee," whether such an individual may continue his /her employment while
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August 15, 2000
Page 3
engaging in the private practice of law without transgressing Section 1103 of the Ethics
Act relating to restricted activities;
3) Assuming the answer to question number 2 is in the affirmative, whether the
Deputy Prothonotary of Allegheny County may practice law in the Civil and Family
Divisions of the Allegheny County Court of Common Pleas; and
4) Whether the analysis would change if the Deputy Prothonotary would receive
legal fees in his /her own name or if he /she would receive a salary as an employee of
another office.
Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) of
the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requestor
based upon the facts which the requestor has submitted. In issuing the advisory based
upon the facts which the requestor has submitted, the Commission does not engage in
an independent investigation of the facts, nor does it speculate as to facts which have
not been submitted. It is the burden of the requestor to truthfully disclose all of the
material facts relevant to the inquiry. 65 Pa.C.S. § §1107(10), (11). An advisory only
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
In order to address the issue as to whether a deputy prothonotary is a public
employee or a public official, it is necessary to analyze the duties, functions and
responsibilities of a deputy prothonotary in order to determine whether such an
individual is covered under the statutory definition of public employee or public official
and the Regulations of the Commission.
The term "public employee" is defined in the Ethics Act as follows:
Section 1102. Definitions.
"Public employee." Any individual employed by the Commonwealth
or a political subdivision who is responsible for taking or recommending
official action of a nonministerial nature with regard to:
1 contracting or procurement;
2 administering or monitoring grants or subsidies;
3 planning or zoning;
4 inspecting, licensing, regulating or auditing any person; or
5 any other activity where the official action has an economic
impact of greater than a de minimis nature on the interests of
any person.
The term shall not include individuals who are employed by this
Commonwealth or any political subdivision thereof in teaching as
distinguished from administrative duties.
65 Pa.C.S. §1102.
The Regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to determine whether
an individual is within the definition of "public employee ":
(A) The individual normally performs his responsibility in the field
without onsite supervision.
(B) The individual is the immediate supervisor of a person who
normally performs his responsibility in the field without onsite supervision.
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August 15, 2000
Page 4
(C) The individual is the supervisor of a highest level field office.
(D) The individual has the authority to make final decisions.
(E) The individual has the authority to forward or stop
recommendations from being sent to the person or body with the authority
to make final decisions.
(F) The individual prepares or supervises the preparation of final
recommendations.
(G) The individual makes final technical recommendations.
(H) The individual's recommendations or actions are an inherent
and recurring part of his position.
(1) The individual's recommendations or actions affect
organizations other than his own organization.
51 Pa.Code §11.1.
The term "public official" is defined in the Ethics Act as follows:
Section 1102. Definitions.
"Public official." Any person elected by the public or elected or
appointed by a governmental body, or an appointed official in the
executive, legislative or judicial branch of this Commonwealth or any
political subdivision thereof, provided that it shall not include members of
advisory boards that have no authority to expend public funds other than
reimbursement for personal expense, or to otherwise exercise the power
of the State or any political subdivision thereof.
65 Pa.C.S. §1102.
The Regulations of the State Ethics Commission similarly define the term "public
official" and set forth the following additional criteria that are used to determine whether
the advisory board exception applies:
(i) The following criteria will be used to determine if the exception
in this paragraph is applicable:
(A) The body will be deemed to have the power to expend public
funds if the body may commit funds or may otherwise make payment of
monies, enter into contracts, invest funds held in reserves, make loans or
grants, borrow money, issue bonds, employ staff, purchase, lease, acquire
or sell real or personal property without the consent or approval of the
governing body and the effect of the power to expend public funds has a
greater than de minimis economic impact on the interest of a person.
(B) The body will be deemed to have the authority to otherwise
exercise the power of the Commonwealth or a political subdivision if one
of the following exists:
(1) The body makes binding decisions or orders adjudicating
substantive issues which are appealable to a body or person other than
the governing authority.
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August 15, 2000
Page 5
(11) The body exercises a basic power of government and performs
essential governmental functions.
(111) The governing authority is bound by statute or ordinance to
accept and enforce the rulings of the body.
(IV) The body may compel the governing authority to act in
accordance with the body's decisions or restrain the governing authority
from acting contrary to the body's decisions.
(V) The body makes independent decisions which are effective
without approval of the governing authority.
(VI) The body may adopt, amend and repeal resolutions, rules,
regulations or ordinances.
(VII) The body has the power of eminent domain or condemnation.
(VIII) The enabling legislation of the body indicates that the body is
established for exercising public powers of the Commonwealth or a
political subdivision.
51 Pa. Code §11.1
Status as a "public employee" or "public official" subject to the Ethics Act is
determined by applying the above definitions and criteria to the position held. The focus
is necessarily upon the position itself, and not upon the individual incumbent in the
position, the variable functions of the position, or the manner in which a particular
individual occupying the position may carry out those functions. See, Philips v. State
Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); Mummau v. Ranck, 531
Fed. Supp. 402 (E.D. Pa. 1982). Furthermore, the Commonwealth Court of
Pennsylvania has directed that coverage under the Ethics Act be construed broadly and
that exclusions under the Ethics Act be construed narrowly. See, Philips, supra.
The full Commission has decided that county row officers and deputies are public
officials as well as public employees who meet the statutory and regulatory criteria for
those terms. See, Weinert, Opinion 96 -002; Fernan /Foradora, Opinion 95 -010. See
also, P.J.S. v. Se Ethics Commission, 669 A.2d 1105 (Pa. Commw. Ct. 1996). Based
upon the above judicial directives, the provisions of the Ethics Act, the State Ethics
Commission Regulations, and the opinions of the State Ethics Commission, in light of
your duties and responsibilities, the necessary conclusion is that you are a "public
official" subject to the financial reporting and disclosure requirements of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa. C. S. §1103(a).
The following terms are defined in the Ethics Act as follows:
Section 1102. Definitions.
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
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August 15, 2000
Page 6
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
family or a business with which he or a member of his
immediate family is associated. The term does not include
an action having a de minimis economic impact or which
affects to the same degree a class consisting of the general
public or a subclass consisting of an industry, occupation or
other group which includes the public official or public
employee, a member of his immediate family or a business
with which he or a member of his immediate family is
associated.
"Authority of office or employment." The actual power
provided by law, the exercise of which is necessary to the
performance of duties and responsibilities unique to a
particular public office or position of public employment.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company,
joint stock company, receivership, trust or any legal entity
organized for profit.
"Business with which he is associated." Any business
in which the person or a member of the person's immediate
family is a director, officer, owner, employee or has a
financial interest.
65 Pa.C.S. §1102.
Section 1103(j) of the Ethics Act provides as follows:
Section 1103. Restricted activities.
(j) Voting conflict. - -Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his
interest as a public record in a written memorandum filed
with the person responsible for recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a
matter before it because the number of members of the body
required to abstain from voting under the provisions of this
section makes the majority or other legally required vote of
approval unattainable, then such members shall be
permitted to vote if disclosures are made as otherwise
provided herein. In the case of a three - member governing
body of a political subdivision, where one member has
abstained from voting as a result of a conflict of interest, and
the remaining two members of the governing body have cast
opposing votes, the member who has abstained shall be
permitted to vote to break the tie vote if disclosure is made
as otherwise provided herein.
65 Pa.C.S. §1103(j).
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August 15, 2000
Page 7
In applying the above provisions of the Ethics Act to your inquiry, you are advised
that Section 1103(a) of the Ethics Act does not prohibit public officials /public employees
from having outside business activities or employment; however, the public
official /public employee may not use the authority of his public position or confidential
information obtained by being in that position for the advancement of his own private
pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89-
011. Examples of conduct that would be prohibited under Section 1103(a) would
include: (1) the pursuit of a private business opportunity in the course of public action,
Metrick, Order No. 1037; (2) the use of governmental facilities, such as governmental
telephones, postage, staff, equipment, research materials, or other property, or the use
of governmental personnel, to conduct private business activities, Freind, Order No.
800; Pancoe, supra; and (3) the participation in an official capacity as to matters
involving the business with which the public official /public employee is associated in his
private capacity, such as the review /selection of its bids or proposals, Gorman, Order
No. 1041.
Under the facts which you have submitted, Section 1103(a) of the Ethics Act
would not preclude you from outside employment /business activity subject to the
restrictions and qualifications as noted above.
The Ethics Act would not prohibit you from practicing law in the Civil and Family
Divisions of the Allegheny County Court of Common Pleas provided that there would be
no improper understandings as set forth in Sections 1103(b) and 1103(c) of the Ethics
Act. Those sections provide in part that no person shall offer to a public official /public
employee and no public official /public employee shall solicit or accept anything of
monetary value based upon the understanding that the vote, official action, or judgment
of the public official /public employee would be influenced thereby. 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 the question presented.
Finally, the fact that you would receive legal fees in your own name or would
receive a salary as an employee of another office would be of no legal significance.
This Advice is limited to addressing the applicability of Section 1103(a) of the
Ethics Act. It is expressly assumed that there has been no use of authority of office for a
private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further,
you are advised that Sections 1103(b) and 1103(c) of the Ethics Act
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code of
conduct other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of
the Rules of Professional Conduct or the County Code.
Conclusion: As First Deputy Prothonotary of Allegheny County, you are a public
official subject to the provisions of the Ethics Act. Section 1103(a) of the Public Official
and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., would not preclude
you from outside employment /business activity subject to the restrictions and
qualifications as noted above. Lastly, the propriety of the proposed conduct has only
been addressed under the Ethics Act.
Pursuant to Section 1107(11), an Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, provided the requestor has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
This letter is a public record and will be made available as such.
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August 15, 2000
Page 8
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code §13.2(h). The appeal may be received
at the Commission by hand delivery, United States mail, delivery
service, or by FAX transmission (717 -787- 0806). Failure to file such an
appeal at the Commission within thirty (30) days may result in the
dismissal of the appeal.
Sincerely,
Vincent J. Dopko
Chief Counsel