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HomeMy WebLinkAbout05-587 McGrory, Jr.ADVICE OF COUNSEL Joseph J. McGrory, Jr., Esquire Hamburg, Rubin, Mullin, Maxwell & Lupin ACTS Center -Blue Bell 375 Morris Road P.O. Box 1479 Lansdale, PA 19446 -0773 October 26, 2005 05 -587 Re: Public Official /Public Employee; Solicitor; Retained /Employed; Conflict of Interest. Dear Mr. McGrory: This responds to your letter of August 26, 2005, having been received by the Legal Division of the State Ethics Commission on October 3, 2005, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq., presents any prohibition or restrictions upon a municipal solicitor who is retained by - as opposed to being an employee of - the governmental body, with regard to matters brought before the municipality involving the private firm that employs the solicitor or the firm's clients. Facts: You are currently employed by a private law firm (the "Firm "). You are contemplating accepting an appointment to the position of Solicitor of Limerick Township ( "Township "), Montgomery County, Pennsylvania. You state that attorneys and clients of the Firm will be bringing matters before the Board. When matters brought before the Board involve the Firm, the Board will utilize a separate attorney from an unrelated independent law firm to represent the Township. You state that you personally will not be bringing any matters before the Board. You have submitted a copy of a letter that you wrote to the Ethics Committee of the Pennsylvania Bar Association ( "PBA ") and PBA's written response to you regarding the propriety of the proposed arrangement described above. On the suggestion of the PBA, you seek confirmation from the State Ethics Commission that you will not be transgressing the Ethics Act. Discussion: It is initially noted that 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 McGrory, 05 -587 October 26, 2005 Page 2 been submitted. It is the burden of the re uester 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 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 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. Cmwlth. 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. Cmwlth. 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 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. Commw. Ct. 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 McGrory, 05 -587 October 26, 2005 Page 3 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, 550 Pa. 686, 704 A.2d 640 (1997). The facts that you have submitted indicate that as Solicitor of Limerick Township, Montgomery County, you would not be an employee of the said governmental body, but rather, you would be 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 and specifically, Section 1103(a) (conflict of interest provision) of the Ethics Act. However, all Solicitors are required to file Statements of Financial Interests. 65 Pa.C.S. 1104 a); Foster, Opinion No. 98 -002; see also, P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999), supra, (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). Therefore, you would be required to file Statements of Financial Interests 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 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 Tight of the aforesaid developments in case law. Based upon the above, your specific inquiry as to the propriety of the proposed arrangement 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 Limerick Township, Montgomery County, you would be retained by - as opposed to being an employee of — Limerick Township, you would not be considered a public 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, all 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 McGrory, 05 -587 October 26, 2005 Page 4 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 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 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. Sincerely, Vincent J. Dopko Chief Counsel