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HomeMy WebLinkAbout01-587 BowerRichard E. Bower, Esquire 517 West Crawford Avenue Connellsville, PA 15425 ADVICE OF COUNSEL August 21, 2001 01 -587 Re: Public Official /Public Employee; Solicitor; Multiple Solicitorships; Retained/ Employed; Municipal Authority; Borough; Intermunicipal Agreement. Dear Mr. Bower: This responds to your letter of July 20, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act presents any prohibition or restrictions upon a solicitor of a municipal authority who is retained by —as opposed to being an employee of —the authority, with regard to simultaneously serving as the retained solicitor of another municipal authority. Facts: You are the current Solicitor for the Borough of South Connellsville Municipal Authority ( "SCMA "). You have applied for the osition of Solicitor for another authority, the Connellsville Municipal Authority ( "CMA "). If selected, you intend to simultaneously serve as the Solicitor for both authorities. As to each authority, you would be retained by, as opposed to being employee of, the authority. The CMA owns and operates a wastewater transportation and treatment complex that serves the City of Connellsville and certain surrounding municipalities, including the Borough of South Connellsville ( "Borough "). The Borough's wastewater collection system is owned and operated by the SCMA. However, pursuant to an Intermunicipal Agreement between the CMA and the Borough, which Agreement you negotiated on behalf of the Borough approximately 11 years ago, the CMA transports the Borough's wastewater to the CMA's treatment plant where the wastewater is treated for a fee. Under the existing Intermunicipal Agreement, the SCMA has the right to object to the CMA's rate increases and to seek relief. Presently, there are no planned negotiations or other agreements between the SCMA and the CMA. However, there may be a need for negotiations or other agreements between the two authorities in the future. You state that if you would be retained by the CMA as its Solicitor, you would be representing both the CMA and the SCMA with regard to the Intermunicipal Agreement on a continuing basis. You further state that the formal consent of both parties to such general "simultaneous services" could likely be arranged. Bower, 01 -587 August 21, 2001 Page 2 Given the above facts, you seek an advisory as to whether you may simultaneously serve as Solicitor for the SCMA and as Solicitor for the CMA. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Public Official and Employee Ethics Act ( "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 1997 and 1999, the status of Solicitors under the Ethics Act (Act 9 of 1989) was clarified by certain rulings of the Commonwealth Court of Pennsylvania and the Supreme Court of Pennsylvania. In P.J.S. v. State Ethics Commission, 697 A.2d 286 (Pa. Cmwlth. 1997), appeal ending, No. 0091 M.D. Appeal Docket 1997, the Commonwealth Court of Pennsylvania held, inter alia, that the conflict of interest provisions of the Ethics Act do apply to solicitors who are public employees and are not just on retainer. The Supreme Court of Pennsylvania subsequently affirmed the Commonwealth Court's decision in the P.J.S. case. P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999). However, in C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Commw. Ct. 1997), based upon an analysis of prior recedents 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 .J.S v. State Ethics Commission, 669 A.2d 1105 (Pa. Commw. Ct. 1996), the Commonwealth Court of Pennsylvania determined that a municipal Solicitor who is retained by —as opposed to being an employee of— the municipality is not a "public official" or "public employee" as defined in the Ethics Act and therefore is not subject to the conflict of interest provisions of the Ethics Act. 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 Ballou, Maunus and P.J.S., we conclude that CPC's conduct 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. 11), this court reiterated that the conflict of interest provisions of section 3 of the Ethics Act apply to solicitors who are public employees Bower, 01 -587 August 21, 2001 Page 3 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. 11 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. Id., at Note 10. The State Ethics Commission filed a Petition for Allowance of Appeal in the C.P.C. case, which Petition was denied by the Supreme Court of Pennsylvania. See, 704 A.2d 640 (Pa. 1997). Under the submitted facts, in both Solicitor positions you would not be an employee but rather would be on retainer. Therefore, as Solicitor for the SCMA and as Solicitor for the CMA, you would not be considered a "public official" or a "public employee" subject to the Ethics Act and specifically, the restrictions as to conflicts of interest at Section 1103(a) of the Ethics Act. C.P.C., supra. However, all Solicitors are required to file Statements of Financial Interests. 65 Pa.C.S. §1104(a); Foster, Opinion No. 98 -002. Therefore, you would be required to file Statements of Financial Interests providing full disclosure as required by the Ethics Act, each year the aforesaid position(s) as Solicitor would be held and the year following termination of service in said position(s). Moreover, it is the State Ethics Commission's view that every "person" is subject to Section 1103(b) of the Ethics Act. Foster, Opinion No. 98 -002. Section 1103(b) of the Ethics Act 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 judgment of the public official, public employee, or nominee or candidate for public office would be influenced thereby. The State Ethics Commission has held that a Solicitor, though not himself a public official /public employee, may not engage in such conduct in his capacity as a "person." Foster, supra. 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 Tight of the aforesaid developments in case law. Based upon the above, your specific inquiry as to simultaneous service need not be addressed. Lastly, 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 respective municipal code or the Rules of Professional Conduct. Conclusion: Under the submitted facts that in your current capacity as Solicitor for the SCMA and in your prospective capacity as Solicitor for the CMA, you are /would be retained as opposed to being an employee of such authorities, you would not in Bower, 01 -587 August 21, 2001 Page 4 either capacity be considered a "public official" or a "public employee" subject to the Ethics Act and specifically, the restrictions as to conflicts of interest at Section 1103(a) of the Ethics Act. However, all Solicitors are required to file Statements of Financial Interests pursuant to Sections 1104 and 1105 of the Ethics Act. Furthermore, Section 1103(b) of the Ethics Act 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 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. 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