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
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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
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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.
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January 4, 2023
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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