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HomeMy WebLinkAbout21-528 ColemanPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.Pa.gov ADVICE OF COUNSEL May 20, 2021 To the Requester: Harry T. Coleman, Esquire Dear Mr. Coleman: 21-528 This responds to your letter received May 12, 2021, by which you requested an advisory from the Pennsylvania State Ethics Commission ("Commission"), seeking guidance as to the general issue presented below: Issue: 1. Whether the Public Official and Employee Ethics Act presents any prohibition or restrictions upon a lawyer who serves as Solicitor to a Regional Police Department who is retained by as opposed to being an employee of —the Regional Police Department, with regards to simultaneously serving as the retained Solicitor of no less than two Townships which are both also members of the Regional Police Department? Brief Answer: NO. Pursuant to C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Cmwlth. 1997), alloc. den., 704 A.2d 640 (1997), based upon an analysis of prior precedents, 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 those terms are defined in the Ethics Act and therefore is not subject to the conflict of interest provisions of the Ethics Act. However, all Solicitors are required to file Statements of Financial Interests pursuant to the Ethics Act. 65 Pa.C.S. § 1104(a); Foster, Opinion 98-002; see also, P.J.S. v. State Ethics Commission, 723 A.2d 174 (1999) (intent of amendment to Section 404, now Section 1104, of the Ethics Act was to include Solicitors who are not employees of the governmental units they serve within the scope of the Ethics Act's financial disclosure provisions). Coleman, 21-528 May 20, 2021 Page 2 Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. You serve as Solicitor for the Pocono Mountain Regional Police Department (PMRPD) which has five municipal members. You also serve as the Solicitor for two member municipalities (Tunkhannock Township and Tobyhanna Township) having recently been appointed to serve as Solicitor for Tobyhanna Township. You are not employed by either PMRPD or either municipality. You are aware of the need to file Statements of Financial Interest pursuant to the Pennsylvania Public Official and Employee Ethics Act (65 Pa.C.S. §1101 et seq.) You have requested that you be provided with Statements of Financial Interests forms by the Township(s) so that you can complete your mandated filing requirements. You now seek an advisory as to whether or not you may simultaneously serve as the Solicitor for the PMRPD and two member municipalities and whether or not you are subject to any additional duties pursuant to the Ethics Act, other than the annual filing of a Statement of Financial Interests. Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. In responding to your inquiry, the threshold question to be addressed is whether, in the capacity as the Solicitor for the PMRPD, Tunkhannock Township and Tobyhanna Township, you would be considered a "public official" and/or "public employee" subject to the Ethics Act. In 1997 and 1999, the status of Solicitors under the Ethics Act 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), the Commonwealth Court of Pennsylvania held, inter alia, that the conflict of interest provisions of the Ethics Act does apply to Solicitors who are public employees and are not just retained by their client municipalities. 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, 723 A.2d 174 (1999). Coleman, 21-528 May 20, 2021 Page 3 However, in C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Cmwlth. 1997), alloc. den., 704 A.2d 640 (1997), based upon an analysis of prior precedents, 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 those terms are defined in the Ethics Act and therefore is not subject to the conflict of interest provisions of the Ethics Act. In the instant matter, based upon the submitted facts, you are advised that in your capacity as the Solicitor for the PMRPD, Tunkhannock Township and/or Tobyhanna Township you are not a "public official" or "public employee" subject to the Ethics Act, and therefore, you as an individual are not subject to the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). In response to your specific question, you are advised that Section 1103(a) of the Ethics Act —which does not apply to you —would not prohibit you from providing simultaneous legal representation to the PMRPD, Tunkhannock Township and Tobyhanna Township. Although as a retained/part-time municipal Solicitor you are not subject to 65 Pa.C.S. §1103(a), it is parenthetically noted that Section 1103(b) of the Ethics Act would apply to you as a private citizen. Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official/public employee anything of monetary value 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. As noted in your request, all Solicitors are required to file Statements of Financial Interests pursuant to the Ethics Act. 65 Pa.C.S. § 1104(a); Foster, Opinion 98-002; see also, P.J.S. v. State Ethics Commission, 723 A.2d 174 (1999) (intent of amendment to Section 404, now Section 1104, of the Ethics Act was to include Solicitors who are not employees of the governmental units they serve within the scope of the Ethics Act's financial disclosure provisions). 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. Significantly, not addressed herein, is the applicability of the Rules of Professional Conduct. Conclusion: Per rulings of the Pennsylvania appellate courts, in your capacity as the Solicitor for the Pocono Mountain Regional Police Department (PMRPD), Tunkhannock Township and/or Tobyhanna Township, you are not a "public official/public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq., and therefore, are not subject to the restrictions of Section 1103(a) of the Ethics Act (pertaining to conflict of interest). Section 1103(a) Coleman, 21-528 May 20, 2021 Page 4 of the Ethics Act would not prohibit you from simultaneously serving as the Solicitor for the Pocono Mountain Regional Police Department (PMRPD), Tunkhannock Township and/or Tobyhanna Township. However, all Solicitors are required to file Statements of Financial Interests pursuant to the Ethics Act. 65 Pa.C.S. § 1104(a); Foster, Opinion 98-002; see also, P.J.S. v. State Ethics Commission, 723 A.2d 174 (1999) (intent of amendment to Section 404, now Section 1104, of the Ethics Act was to include Solicitors who are not employees of the governmental units they serve within the scope of the Ethics Act's financial disclosure provisions). Pursuant to Section 1107(11) of the Ethics Act, 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 requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. 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. RespectfullyaCounse