HomeMy WebLinkAbout95-612 ForadoraJohn R. Fernan, Esquire
John H. Foradora, Esquire
Ferman, Whitney & Masson
PO Box 467
Ridgway, PA 15853
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 25, 1995
Re: Solicitor; Solicitor for County Row Officers; PIS
Dear Mr. Fernan and Mr. Foradora:
The Statute mandates that Solicitors for
political subdivisions file said statements,
and in your Notices you gave us twenty (20)
days to file our delinquent statements with
the governing authority of the political
subdivision which we serve and the State
Ethics Commission.
We do not serve any political
subdivisions as Solicitors for the Register
and Recorder of Elk County or the Treasurer of
Elk County, and on the contrary we serve a
95 -612
This responds to your letter of September 22, 1995, in which
you requested advice from the State Ethics Commission.
Issue: You ask whether in your respective capacities as Solicitor
for the Register and Recorder of Elk County, and as Solicitor for
the Treasurer of Elk County, you are required to file Statements of
Financial Interests pursuant to the Public Official and Employee
Ethics Law.
Facts: You question whether as Solicitors for Elk County row
officers, you are required to file Statements of Financial
Interests pursuant to the Ethics Law. It is your position that you
are not required to file. Your proffered reasons are set forth in
the following excerpt from your letter of inquiry:
Fernan, John E., and Foradora, John H., 95 -612
October 25, 1995
Page 2
"political official" as defined in the act.
Further, the act mandates only Solicitors
of counties need file said statements, and no
where in that act does it mandate that other
Solicitors for the county row officers must or
may file said statements.
Accordingly, we believe that the above
statute does not mandate nor even authorize of
(sic) filing such statements, and we did not
violate the statute by not filing the same,
and on the contrary would violate the statute
if we did file.
If you have any judicial authority to the
contrary, we would be happy to reconsider our
position in this matter.
Letter of September 25, 1995.
Discussion: Although there is no judicial precedent on the precise
issue which you have raised, Commonwealth Court in its ruling in
Phillips v. State Ethics Commission, 79 Pa. Commw. 491, 470 A.2d
659 (1984), has directed this Commission to construe coverage of
the Ethics Act broadly, and conversely, to construe exclusions from
the Ethics Act narrowly.
In Powell, Opinion 89 -025, this Commission held that the
Solicitor for the Elk County Industrial Development Authority was
required to file Statements of Financial Interests pursuant to
Section 4(a) of the Ethics Law. More recently, the Commission held
in Confidential Opinion No. 94 -009 that a school district solicitor
was a "public official /public employee" subject to the Ethics Law.
The requirement that you must file Statements of Financial
Interests in your respective capacities as Solicitors is founded in
the clear language of Section 4(a) of the Ethics Law and the common
sense understanding of the definition of "political subdivision"
set forth in Section 2 of the Ethics Law. These Sections provide as
follows:
Section 4. Statement of financial interests
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.
Fernan, John E., and Foradora, John H., 95 -612
October 25, 1995
Page 3
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
oubdivisions are required to file under this
section.
Section 2. Definitions
The following words and phrases used in
this act shall have, unless the context
clearly indicates otherwise, the meanings
given to them in this section:
"Political subdivision.
city, borough, incorporated
school district, vocational
institution district, and
entity or body organized
mentioned.
Any county,
town, township,
school, county
any authority,
by the afore-
65 P.S. SS 404(a) (Emphasis added); 402. See also, 51 Pa. Code SS
11.1, 15.2(g).
The underlined portion of Section 4(a) above specifically
requires full or part time solicitors for political subdivisions to
file the Statement of Financial Interests.
The definition of "political subdivision" above specifically
includes counties. Elk County is clearly a "political subdivision"
within this definition.
Your argument, that county row officers are not specifically
enumerated within that definition as a separate and independent
category from the county itself so that you are not required to
file, belies common sense and any rational interpretation of the
statute, and reduces to mere semantics.
Fernan, John E., and Foradora, John H., 95 -612
October 25, 1995
Page 4
You are Solicitors for County officers. Your existence is
statutorily prescribed by the County Code. 16 P.S. 55807, 1311,
1314. Indeed, the existence of the County row officers themselves
is statutorily prescribed by the County Code. 16 P.S. 5401. They
do not exist independently of the County. They are within and are
part of the County government. Therefore, as Solicitors for these
County officers, you are Solicitors "for" the County.
The Statutory Construction Act of 1972 provides that "...the
General Assembly does not intend a result that is absurd,
impossible of execution or unreasonable." 1 Pa.C.S. 51922(1). The
Ethics Law must be construed to ascertain and effectuate the intent
of the General Assembly. 1 Pa.C.S. 51901. The words used to
define "Political Subdivision," such as "county," are not
themselves defined, and so they must be construed according to
their common and approved usage. 1 Pa.C.S. 51903. Your proffered
interpretation violates all of these rules.
Your theory would lead to an absurd result. For example,
Section 4(a) also requires public officials of the Commonwealth to
file. Under your theory, State cabinet heads could decline to
file, claiming to serve only their agency rather than "the
Commonwealth" as a whole.
Furthermore, were your theory to be accepted, every division,
agency, unit and office within local, county, and state government
would have to be specifically enumerated within the definition of
"political subdivision" for the Ethics Law to have its
legislatively intended effect. Such a definition would consume
volumes. Certainly, that was not what the General Assembly
intended.
Based upon all of the above, you are required to file
Statements of Financial Interests. Failure to do so could result
in formal proceedings against you.
As to your argument that by filing the form you would violate
the Ethics Law, even if your theory had any validity, you would not
risk being found in violation of the Ethics Law merely by filing
the Statement of Financial Interests form. Voluntary filings are
expressly permitted by law. 65 P.S. 5407(4). This is not to
suggest that your filings would in any way be "voluntary." To the
contrary they are expressly mandated.
Conclusion: In your respective capacities as Solicitor for the
Register and Recorder of Elk County and as Solicitor for the
Treasurer of Elk County, each of you must file a Statement of
Financial Interests for each year in which you hold these positions
and for the year following termination of such service.
If you have not already done so, Statements of Financial
Fernan, John E., and Foradora, John H., 95 -612
October 25, 1995
Page 5
Interests must be filed within 30 days of this Advice.
Pursuant to Section 7(11), this 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, providing the requestor has disclosed truthfully all
the material facts and committed the acts complained of in reliance
on the Advice given.
such.
This letter is a public record and will be made available as
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
513.2(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.
erely,
Vin ent J. Dopko
Chief Counsel