HomeMy WebLinkAbout00-005 BillotteOPINION OF THE COMMISSION
Before: Daneen E. Reese, Chair
Julius Uehlein
Louis W. Fryman
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
DATE DECIDED: 06/20/00
DATE MAILED: 07/07/00
Raymond L. Billotte
District Court Administrator
Court of Common Pleas of Allegheny County
Fifth Judicial District of Pennsylvania
Administrative Office
340 Frick Building
437 Grant Street
Pittsburgh, PA 15219 -6000
00 -005
Re: Public Official; Public Employee; Judicial Branch; Judicial Officer; Judicial
Employee; Jurisdiction; Separation of Powers; Statement of Financial Interests.
Dear Mr. Billotte:
This Opinion is issued in response to your advisory request dated April 5, 2000.
I. ISSUE:
Whether, in light of the Commonwealth Court's ruling in L.J.S. v. State Ethics
Commission, 744 A.2d 798 (Pa. Cmwlth. 2000), the Public Official and Employee Ethics
Act applies to those meeting the Ethics Act's definitions of "public official" or "public
employee" who are part of the Judicial Branch of government, and if so: (1) how
appointees of a county President Judge are to be classified; and (2) where public
officials and public employees of the judiciary at the County Court level are required to
file their statements of financial interests.
II. FACTUAL BASIS FOR DETERMINATION:
As the Court Administrator for the Fifth Judicial District of Pennsylvania, you seek
an advisory opinion from the State Ethics Commission based upon the following facts
which you have submitted.
In February, 1999, you made a determination that 16 employees appointed by
the President Judge in your Judicial District fell within the definition of "public employee"
as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1102. Accordingly, each such employee was directed to file a statement of
financial interests with the Court of Common Pleas Human Resources Office before
May 1, 1999. However, the County Manager for Allegheny County has indicated that
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July 7, 2000
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for the year 2000, the Court employees' statements of financial interests should be filed
in the County Manager's office rather than in the Court's Human Resources Office.
In addition to raising a concern as to the proper filing location for the statements
of financial interests filed in your Judicial District, you note that on January 13, 2000, the
Commonwealth Court of Pennsylvania rendered a decision in the case of L.J.S. v. State
Ethics Commission, 744 A.2d 798 (Pa. Cmwlth. 2000), which decision was not
appealed by this Commission. You state your view that the decision appears to declare
the Ethics Act to be in violation of Article 5, Section 10 of the Pennsylvania Constitution
insofar as the Judicial Branch of government is concerned.
You ask a threshold question of whether it is the opinion of this Commission that
the Ethics Act no longer applies to the Judicial Branch of government, such that
employees of the Judiciary are not required to file statements of financial interests. You
pose the following two additional inquiries to be answered if it is the opinion of this
Commission that the Ethics Act still applies to the Judicial Branch of government:
1. Whether public employees and public officials of the
Judiciary who are within your Judicial District would file their
statements of financial interests with the Court of Common
Pleas Office of Human Resources or with the County
Manager's Office; and
2. Whether Court employees who are required to file
statements of financial interests are to be considered in the
class of "public officials" rather than "public employees" if
they are appointed by the President Judge.
By letter dated May 30, 2000, you were notified of the date, time, and location of
the public meeting at which your request for an advisory Opinion was to be considered.
III. DISCUSSION
The threshold question presented by your inquiry is whether the Ethics Act
applies to officers and employees of the Judicial Branch of government. To properly
consider the question, we must first review the prohibitions and requirements of the
Ethics Act and the categories of individuals and entities to which they apply.
Section 1103 of the Ethics Act, entitled "Restricted activities," imposes
prohibitions and restrictions upon various categories of individuals and entities. Section
1103(a) prohibits "public officials" and "public employees" from engaging in conduct that
constitutes a conflict of interest. 65 Pa.C.S. §1103(a). Thus, Section 1103(a) applies to
"public officials" and "public employees."
Section 1103(b) prohibits "persons" from offering or giving to a public official,
public employee or nominee or candidate for public office or to a member of his
immediate family or a business with which he is associated, anything of monetary value
"based on the offeror's or donor's understanding that the vote, official action or
judgment of the public official or public employee or nominee or candidate for public
office would be influenced thereby." 65 Pa.C.S. §1103(b). Thus, Section 1103(b)
applies to "persons."
Section 1103(c) prohibits public officials, public employees or nominees or
candidates for public office from soliciting or accepting anything of monetary value
"based on any understanding of that public official, public employee or nominee that the
vote, official action or judgment of the public official or public employee or nominee or
candidate for public office would be influenced thereby." 65 Pa.C.S. §1103(c).
Therefore, Section 1103(c) applies to public officials, public employees, nominees, and
candidates for public office. 65 Pa.C.S. §1103(c).
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July 7, 2000
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Section 1103(d) prohibits public officials and public employees from accepting
honoraria. 65 Pa.C.S. §1103(d).
Section 1103(e) prohibits "persons" from soliciting or accepting anything of
monetary value contingent upon assuming or accepting public office or employment. 65
Pa.C.S. §1103(e).
Section 1103(f) imposes restrictions where there is contracting /subcontracting by
a public official or public employee, his spouse or child, or any business with which the
public official /public employee or his spouse or child is associated, as to a contract with
the governmental body with which the public official /public employee is associated. 65
Pa.C.S. §1103(f). The restrictions of section 1103(f) apply to public officials and public
employees, their spouses and children, and businesses with which they, their spouses
or children are associated.
Section 1103(g) is a revolving door provision which applies to former public
officials and former public employees. 65 Pa.C.S. §1103(g).
Section 1103(h) prohibits "persons" from using for any commercial purpose
information obtained from statements of financial interests required by the Ethics Act.
65 Pa.C.S. §1103(h).
Section 1103(i) imposes restrictions upon former "executive -level State
employees" who, during their employment with the Commonwealth, have actively
participated in recruiting businesses or corporations to come to Pennsylvania or to
expand in Pennsylvania through actual or promised grants or loans from the
Commonwealth.
Section 1103(j) imposes requirements upon public officials and public employees
as to conflicts.
Section 1104 of the Ethics Act sets forth the requirements for filing statements of
financial interests. Section 1104 applies to public officials, public employees,
candidates, and nominees. Section 1104(a), which sets forth the filing requirements for
public officials and public employees, provides as follows:
§ 1104. Statement of financial interests required to be
filed
65 Pa.C.S. §1104(a).
(a) Public official or public employee. - -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.
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Section 1105 of the Ethics Act sets forth the substance of what is to be disclosed
on statements of financial interests. 65 Pa.C.S. §1105.
Section 1108(j) of the Ethics Act is a "Whistleblower" provision which imposes
restrictions upon public officials, public employees, and Members and employees of this
Commission.
Section 1108(k) of the Ethics Act imposes restrictions upon "persons" relative to
breaching confidentiality as to matters before this Commission. 65 Pa.C.S. §1108(k).
Finally, Section 1110 of the Ethics Act is a "Wrongful Use of Act" provision which
applies to "persons" who sign complaints alleging violations of the Ethics Act.
As evidenced by the above review, the Ethics Act is not limited in its applicability
to public officials and public employees. Some of its provisions apply to other
categories, such as "persons."
The Ethics Act defines the terms "person," "public employee," and "public official"
as follows:
§ 1102. Definitions
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"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.
"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.
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July 7, 2000
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65 Pa.C.S. §1102 (Emphasis added).
This Commission's Regulations similarly define the terms "public employee" and
"public official" and provide examples of each. 51 Pa. Code §11.1. Court
administrators are listed among those who are generally considered to be "public
employees," while law clerks, court criers, court reporters, probation officers, security
guards and writ servers are listed among those who are generally not considered to be
"public employees" as that term is defined by the Ethics Act. Id.
It is clear that some officers and employees of the Judicial Branch would fall
within the Ethics Act's definitions of "public official" and "public employee." Obviously,
all of them would qualify as "persons." It is also clear that it was the General
Assembly's intent that such officers and employees would be subject to the Ethics Act,
as is evidenced, for example, by the specific mention of the Judicial Branch in the
definition of "public official.'
However, because of the constitutional separation of powers, the question of
whether the Ethics Act may be applied to judicial officers and judicial employees does
not end with the Ethics Act or with the General Assembly's intent in promulgating it.
Article V, Sections 10(a) and (c) of the Constitution of Pennsylvania provide in
pertinent part as follows:
Judicial Administration
Section 10. (a) The Supreme Court shall exercise
general supervisory and administrative authority over all the
courts and justices of the peace... .
(c) The Supreme Court shall have the power to
prescribe general rules governing practice, procedure and
the conduct of all courts, justices of the peace and all officers
serving process or enforcing orders, judgments or decrees of
any court or justice of the peace ... and for admission to the
bar and to practice law, and the administration of all courts
and supervision of all officers of the Judicial Branch, if such
rules are consistent with this Constitution and neither
abridge, enlarge nor modify the substantive rights of any
litigant, nor affect the right of the General Assembly to
determine the jurisdiction of any court or justice of the peace,
nor suspend nor alter any statute of limitation or repose. All
laws shall be suspended to the extent that they are
inconsistent with rules prescribed under these provisions.
Constitution of Pennsylvania, Article V, Sections 10(a), (c).
In L.J.S. v. State Ethics Commission, 744 A.2d 798 (Pa. Cmwlth. 2000), the
Commonwealth Court of Pennsylvania considered the separation of powers issue and
ruled that this Commission lacked jurisdiction over a county's Chief Adult Probation
Officer. The Court stated that the Supreme Court of Pennsylvania has exclusive
jurisdiction over judicial employees and judicial officers. Id., 744 A.2d at 801 -803. The
Court held that L.J.S. was a judicial officer subject to the exclusive jurisdiction of the
Supreme Court of Pennsylvania. Id. at 802 -803.
Based upon the L.J.S. decision, this Commission lacks jurisdiction to enforce the
Ethics Act as to judicial officers and judicial employees. However, in deciding the L.J.S.
case, Commonwealth Court emphasized that judicial officers (and presumably judicial
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employees as well) are not immune from criminal prosecution, and "like any citizen [are]
subject to investigation by the proper authority for any criminal activity." L.J.S., supra,
744 A.2d at 803 (Citation omitted).
We would note that the Ethics Act provides criminal penalties for violations of its
requirements. Section 1109 of the Ethics Act provides that a person who violates the
Ethics Act commits either a felony or a misdemeanor, depending upon the particular
Section violated, and is subject to a fine and /or imprisonment. The penalty provisions
include, for example, the following:
§1109. Penalties
(a) Restricted activities violation. —Any person
who violates the provisions of section 1103(a), (b) and (c)
(relating to restricted activities) commits a felony and shall,
upon conviction, be sentenced to pay a fine of not more than
$10,000 or to imprisonment for not more than five years, or
both.
(b) Financial interests statement violation. —
Any person who violates the provisions of section 1103(d)
through (j), 1104 (relating to statement of financial interests
required to be filed) or 1105(a) (relating to statement of
financial interests) commits a misdemeanor and shall, upon
conviction, be sentenced to pay a fine of not more than
$1,000 or to imprisonment for not more than one year, or
both.
65 Pa. C. S. § §1109(a), (b).
Although this Commission lacks jurisdiction to enforce the Ethics Act as to
judicial officers and judicial employees, based upon the Commonwealth Court's holding
in L.J.S. v. State Ethics Commission, 744 A.2d 798 (Pa. Cmwlth. 2000), this
Commission may not go so far as to determine that the Ethics Act does not apply to
them. To the extent that question remains to be answered, it must be answered by the
Courts.
Given this Commission's lack of jurisdiction to perform its duties insofar as
judicial officers and judicial employees are concerned, this Opinion does not address
your remaining inquiries which pertain to proper classification and filing locations for
statements of financial interests.
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.
IV. CONCLUSION: Although this Commission lacks jurisdiction to enforce the
Ethics Act as to judicial officers and judicial employees, based upon the Commonwealth
Court's holding in L.J.S. v. State Ethics Commission, 744 A.2d 798 (Pa. Cmwlth. 2000),
this Commission may not go so far as to determine that the Ethics Act does not apply to
them. To the extent that question remains to be answered, it must be answered by the
Courts.
Pursuant to Section 1107(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.
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July 7, 2000
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This letter is a public record and will be made available as such.
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 must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code §21.29(b).
By the Commission,
Daneen E. Reese
Chair