HomeMy WebLinkAbout86-006-R DiehlKenneth R. Skelly
Chief Counsel
Liquor Control Roard
406 Northwest Office Ruilding
Harrisburg, Pennsylvania 1712.4
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
DEM:fun 21 1 86
MAI LED ti
R6 -006 -R
Faith S. Diehl, Attorney
Liquor Control Roard
406 Northwest Office Ruilding
Harrishurg, Pennsylvania 17124
Re: Statement of Financial Interests, Full -Time Puhlicly Employed Attorney,
Reconsideration of Opinion 86 -006
Dear Mr. Skelly and Ms. Diehl:
This opinion is issued pursuant to your request of September 10, 1986,
seeking reconsideration of Opinion No. 86 -006.
I. Issue:
Whether the State Ethics Commission should reconsider its previous
opinion holding that the Chief Counsel and an Attorney II for the Pennsylvania
Liquor Control Roard were required to file Statements of Financial Interests
in accordance with the provisions of the State Ethics Act.
I1, Factual Rasis for Determination:
On or ahout April 28, 1986, you forwarded to the State Ethics Commission
a financial disclosure appeal form wherein you indicated that you were
declining to file a Statement of Financial Interests in accordance with the
State Ethics Act pending the resolution of a Commonwealth Court case involving
the requirement that puhlicly employed attorneys comply with the provisions of
the State Ethics Act. Your appeal form was received on May 8, 1986, and was
processed as a request for an Advice of Counsel. Fin July 9, 1986, Advice No.
86 -582 was issued. That advice concluded, that as Chief Counsel to the
Pennsylvania Liquor Control Roard, you were a public employee within the
purview of the State Ethics Act and that you were, therefore, required to file
a Statement of Financial Interests in accordance with that law.
Kenneth R. Skelly, Chief Counsel
Faith S. Diehl, Attorney
Page 2
On July 2.4, 1986, you requested that the full Commission review the
aforementioned Advice of Counsel. 0n August 12, 1986, Ms. Faith Diehl, an
Attorney II with the Liquor Control Rnard ,joined your appeal, On August 20,
1986, the State Ethics Commission issued Opinion No. 86 -Atari, concluding that
both you and Ms. Diehl were public employees within the purview of the State
Ethics Act, and therehy required to file the Statement of Financial interests
in accordance therewith. On September 10, 1086, you filed a request for
reconsideration once again asserting that you should not he required to file a
Statement of Financial Interests pending the resolution of the previously
mentioned Commonwealth Court case, Maunus v. State Ethics ':amni ;sio,i, 277 C.f.
1985. On September 19, 1986, two days after you filed your request for
reconsideration, the Commonwealth Court of Pennsylvania issued its Opinion and
Order in the aforementioned case. The ruling of the Commonwealth Court, in
that matter, held that the financial disclosure.provisions of the Stato Ethics
Act were invalid as they applied to public employees performing professional
legal duties. On Septemher 30, 1986, the State Ethics Commission filed a
petition for allowance of appeal in the Supreme Court of Pennsylvania,
TI. nissc:sslon:
In the instant matter, we have been asked to reconsider our Opinion in
5k , 86-0f(. Generally, the issues to he considered in reviewing & request
for eseeosideratio'i of the type presented herein, are limited. Ths r.iscretion
of as administrative agency granting or denying reconsideration is broad and,
ie exorcised in a sound manner, will he sustained. See, Krane, 84- 001 -R.
keco.sideration of an agency decision is generally granter" to afford an
opportunity to adduce testimony or evidence not offered at the original
proceeding because it was not available. Douglas v. Workmen's Compensation
Appeal Roard, 32 Pa. Commw. Ct. 156, 377 A.2d 1300, (1977). Rehearing is
generally not granted solely for the purpose of strengthening a weak case or
for the purpose of hearing testimony which may he cumulative. Pennsylvania
Glass /Sand Corporation v. Workmen's Compensation Appeal Roard, 46 Pa. Commw.
Ct. 377, 407 A.2d 75, (1479). These well established provisions of law have
specifically been adopted by the Pennsylvania State Ethics Commission in
reviewing requests for reconsideration of Commission opinions. :;oyle, 83 -002,
Johnson /Hartman, 86- 004 -R.
In the instant situation, your Bequest for reconsideration, while not
primarily hased upon the Commonwealth Court decision in Maunus and Thau which
was issued after your request was made, must he considered in light of that
Opinion. Specifically, the Commonwealth Court of Pennsylvania decider) that,
"The financial disclosure provisions of the Ethics Act are invalid as they
apply to public employees performing professional legal duties."
Kenneth R. Skelly, Chief Counsel
Faith S. Diehl, Attorney
Page 3
This Commission, however, has appealed this decision to the Supreme Court
of Pennsylvania. The Pennsylvania Rules of Appellate Procedure provide that
the taking of an appeal by the Commonwealth or any officer thereof, acting in
an official capacity, should operate as a supersedeas in favor o° Such party.
Pa. R.A.P., Rule 1736, 42 Pa. C.S.A. The Order of the Commonwealth Court of
Pennsylvania is, therefore, suspended pending review hy the Supreme Court of
Pennsylvania. We, thus, believe that the Statement of Finaucial interests
filing requirement, even. as applied to attnrneys, remains effective until such
issue is addressed hy the Supreme Cuurt of Pennsylvania, This Cer•:.,nission is
mandated to administer that provision of the law and, as such, N will deny
your request for reconsideration.
IV. Conclusion:
The request for reconsideration is denied. You must, within thirty (30)
days from the date of this opinion, file a Statement of rinam i•:1 Interests in
accordance with the State rthics Act. The original of the statement should he
forwarded to this Commission. Additionally, it is noted until the final
resolution of the litigation that is currently pending inne :supreme Court of
Pennsylvania, this Commission will continue to me ntair. ;H sdiforce its
positions that public officials and public employees, p=:' professional
legal services, must continue to file Statements or Finar,...i:l Interests.
3y the Commiission.
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