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HomeMy WebLinkAbout02-513 MonahanBrian M. Monahan, Esquire 701 Washington Street Easton, PA 18042 Dear Mr. Monahan: ADVICE OF COUNSEL February 5, 2002 02 -513 Re: Public Official /Public Employee; Solicitor; Retained /Employed; Township; County; Council; Multiple Solicitorships. This responds to your letter of January 3, 2002, 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 municipal solicitor of a second class township who is retained by - as opposed to being an employee of - the township, with regard to also serving as a solicitor for a county council. Facts: You currently serve as the Solicitor for the Township of Williams on a part - tier diem basis. The Township of Williams is a Second -Class Township located within the boundaries of Northampton County. On January 7, 2002, you will likely be appointed part -time Solicitor for the Northampton County Council, the legislative body of Northampton County. Northampton County is a Third -Class County governed by the Northampton County Home Rule Charter ( "Home Rule Charter "). You have submitted a copy of the Home Rule Charter, which is incorporated herein by reference. Pursuant to the Home Rule Charter, the Office of the County Executive exercises the executive and administrative powers of the County, while the nine - member County Council exercises the legislative powers of the County. County Council is represented by its own Solicitor who has no connection whatsoever to the Office of the Solicitor. Section 908 of the Home Rule Charter provides that the Office of the Solicitor is immediately under the direction and supervision of the County Executive. Section 908 also provides that the Solicitor is prohibited from serving as legal counsel, solicitor, or prosecuting attorney for the United States, Pennsylvania, or any municipal corporation of Pennsylvania. You state that this prohibition does not apply to the Solicitor to County Council. Monahan, 02 -513 February 5, 2002 Page 2 Currently, the County Solicitor employs seven Assistant County Solicitors. You state that there has been a longstanding practice among Assistant Solicitors to also serve as municipal solicitors for townships and boroughs in Northampton County. For example, Assistant County Solicitor Lincoln Treadwell, III, also serves as Solicitor to Lower Saucon Township and Richland Township, Bucks County. Assistant County Solicitor David M. Backenstoe is a practicing attorney with Haber, Corriere, and Backenstoe, Professional Corporation (the "Law Firm "), which serves as the Solicitor to the following political subdivisions: Plainfield Township, Moore Township, Lehigh Township, Lehigh Township Municipal Authority, Walnutport Borough, and Hellertown Borough. Parenthetically, Michael Corriere, who serves as Assistant Treasurer of the Law Firm, is also a member of the Northampton County Council. Based upon the foregoing facts, you pose the following questions: 1. Whether employment as Solicitor to Northampton County Council and Solicitor to the Township of Williams constitutes a conflict of interest; and 2. Whether the Ethics Act prohibits employment as Solicitor to Northampton County Council and Williams Township. 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 re uestor 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), 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 precedents 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 Monahan, 02 -513 February 5, 2002 Page 3 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 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). The facts which you have submitted indicate that as Solicitor of the Township of Williams, you are not an employee of the said governmental body, but rather are retained. Therefore, based upon C.P.C., supra, you would not be considered a "public official" or a "public employee" subject to the Ethics Act. Consequently, Section 1103(a) of the Ethics Act would not apply to you in the said capacity as Solicitor. 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 FinancTnterests providing full disclosure as required by the Ethics Act, each year the aforesaid position as Solicitor is held and the year following termination of service in said position. 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 Monahan, 02 -513 February 5, 2002 Page 4 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 light of the aforesaid developments in case law. Based upon the above, your inquiries 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: Based upon the submitted facts that as Solicitor of the Township of Williams, you are retained by - as opposed to being an employee of — the Township of Williams, you would not be considered a ublic official /public employee subject to the Ethics Act. Consequently, Section 1103(a) of the Ethics Act would not apply to you in the said capacity as Solicitor. However, a I 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 ). TThe 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