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HomeMy WebLinkAbout23-501 Ruggiero PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL January 4, 2023 To the Requester: Frank J. Ruggiero, Esquire 23-501 Dear Mr. Ruggiero: This responds to your letter dated November 28, 2022, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue presented below: Issue: Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual serving as the County Solicitor for Lackawanna County, Pennsylvania, with regard to retaining his position as the Lackawanna County Solicitor while simultaneously seeking election as a Judge of the Court of Common Pleas of Lackawanna County. Brief Answer: NO. The Ethics Act would not prohibit the individual from retaining his position as the Lackawanna County Solicitor while simultaneously seeking election as a Judge of the Lackawanna County Court of Common Pleas. Facts: You request an advisory from the Commission based upon the following submitted facts. You are the County Solicitor for Lackawanna County. The Lackawanna County Home Rule Charter provides, in pertinent part, that the Lackawanna County Board of Commissioners shall appoint a County Solicitor, who in turn shall appoint assistant solicitors in such numbers and at such salaries as shall be fixed by the Lackawanna County Salary Board. Throughout the term of office, the Lackawanna County Solicitor and each assistant solicitor shall accept no fees for the Ruggiero, 23-501 January 4, 2023 Page 2 performance of their duties other than their salaries as fixed by the Lackawanna County Salary Board. You ask whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to retaining your position as the Lackawanna County Solicitor while simultaneously seeking election as a Judge of the Court of Common Pleas of Lackawanna County in 2023. 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 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 material facts. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. -- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions “Conflict” or “conflict of interest.” Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. “Authority of office or employment.” The actual power provided by law, the exercise of which is necessary to the Ruggiero, 23-501 January 4, 2023 Page 3 performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest” (i.e., the “de minimis exclusion” or the “class/subclass exclusion”), 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. The use of government staff, time, equipment, facilities, or property for non-governmental purposes — including business, personal, or political purposes — is generally prohibited and may form the basis for a violation of Section 1103(a) of the Ethics Act. See, e.q., Dennis, Opinion 07- 003; Confidential Opinion, 05-001. The Commission has long held that government offices, facilities, equipment, and personnel are to be used for governmental purposes and not for private, business or campaign/re-election activities. Id. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. As the County Solicitor for Lackawanna County, you are a public employee subject to the Ethics Act. See, P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999) (holding that a solicitor who is employed by a governmental body and not just on retainer would be considered a “public employee” subject to the provisions of the Ethics Act); cf., C.P.C. v. State Ethics Commission, 698 A.2d 155 (Pa. Cmwlth. 1997), alloc. den., 550 Pa. 686, 704 A.2d 640 (1997) (holding that retained – as opposed to employed – solicitors are not public officials or public employees under the Ethics Act). You are advised that the Ethics Act would not prohibit you from retaining your position as the Lackawanna County Solicitor while simultaneously seeking election as a Judge of the Lackawanna County Court of Common Pleas; however, Section 1103(a) of the Ethics Act would generally prohibit you, in your capacity as the Lackawanna County Solicitor, from using governmental resources for election campaign-related purposes. See Spanik, Order 1719; Miller, Order 1681; Wright, Order 1541; Habay, Order 1313; Freind, Order 800; Dennis, Opinion 07-003; Confidential Opinion, 05-001. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Ruggiero, 23-501 January 4, 2023 Page 4 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. 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 receivedat 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. Respectfully, Bridget K. Guilfoyle Chief Counsel