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HomeMy WebLinkAbout80-036 Massiah-JacksonFrederica Massiah- Jackson, Esq. 604 West Burnham Road Philadelphia, PA 19119 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 August 20, 1980 OPINION OF THE COMMISSION 80 -036 Dear Ms. Massiah- Jackson: In your letter of April 29, 1980, you requested an advisory opinion from the State Ethics Commission relative to your employment by several Senate committees. You explained that prior to taking a leave of absence on May 31, 1979, you were employed as a salaried, full -time associate attorney with the Philadelphia law firm of Blank, Rome, Comisky and McCauley. You further explained that during.the period from June 1, 1979 to February 29, 1980, you were retained by a special Senate committee which reviewed business practices in the Commonwealth and that since March 1, 1980, you have served as counsel to the Senate Insurance Committee. You stated that you have performed services for the committees pursuant to Service Purchase Contracts. You further stated that no taxes have been deducted from your paychecks nor are you eligible for the benefits available to Commonwealth employees. You specifically requested an opinion concerning your obligation to file a financial interest statement pursuant to Section 4 of Act 170. Act 170 applies to "public officials" and "public employees" of the Commonwealth and political subdivisions thereof. It is the Commission's opinion that when a lawyer provides services to the Commonwealth or a political subdivision pursuant to a service purchase contract, the lawyer may be considered a "public employee" within the purview of the Ethics Act under certain circumstances. Obviously, the Ethics Act extends to individuals "employed by" the Commonwealth or a political subdivision. The Ethics Act does not by its very terms or its intent, Frederica Massiah- Jackson, Esq. August 20, 1980 Page 2 however, exempt individuals "employed by" the Commonwealth solely on the basis that their relationship is based on a Service Purchase Contract., Hence, the existence of this relationship is not per se a basis for excluding or including individuals from the coverage of the Ethics Act. This question must and should be resolved with reference to the purpose of the Act itself and in light of the aims of the Act. Basically, if a person is employed in a position of public trust which could be abused, the Ethics Act would apply regardless of the formal basis (service purchase contract, employed at "- will, common law servant) for that relationship, Of course, the circumstances surrounding a relationship are indicia by which to judge whether an individual is "employed by" the Commonwealth in such a position of public trust. For example, if the relationship is continuing in nature, the person so employed may tend to enjoy a status which might be considered more likely to be covered by the Ethics Act than not. Also factors to consider might include: Whether the work performed is identical to or similar to the work which would be performed by full -time regular employees; whether or not the person expects to continue in such service or has a history of such service; whether the person is supervised and /or directed by the Commonwealth or political subdivision; and whether the person assumes a relationship with the Commonwealth or political subdivision which would, in fact, be one, which in the opinion of the Commission would be one where the public trust could be implicated. While these factors are not individually or solely determinative of the question, your relationship as counsel with the Special Senate Committee and the Insurance Committee was clearly one which is similar to the work which regularly employed legal counsel would perform. Your ability to recommend official action would be similar. In your work you enjoy a position of public trust. In light of these factors, it is the Commission's opinion that you were a "public employee" with respect Frederica Massiah- Jackson August 20, 1980 Page 3 to the work performed for the Senate Committee reviewing business practices and that you are currently a "public employee" in your capacity as counsel to the Senate Insurance Committee. It is the Commission's opinion, therefore, that you are required to file a statement of financial interests pursuant to Section 4 of Act 170. Pursuant to Section 7 (9) (i), this opinion 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. This letter is a public record and will be made available as such. PJS /jc cc: William Kennedy Freeman Hankins ) 6:-L-.- PAUL J . (S Chairman 72 ITH