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Home My WebLink About06-585 Puppio, Jr.Michael V. Puppio, Jr., Esquire Raffaele Puppio, LLP 19 West Third Street Media, PA 19063 ADVICE OF COUNSEL September 27, 2006 06 -585 Dear Mr. Puppio: This responds to your letter of August 24, 2006, by which you requested advice from the State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §§ 1104 -1105, an attorney who is: (1) a county council person; (2) a principal in a law firm (the "Firm "); and (3) the primary attorney handling the work for certain municipal /school district solicitorships of the Firm, would be required to disclose such municipalities and school districts as sources of income on his Statement of Financial Interests when the Firm, not the attorney, is the designated solicitor and all fees generated from the Firm's solicitorships are deposited in the general operating account of the Firm. Facts: You serve as a Member of Delaware County Council. You acknowledge that as a Member of Delaware County Council, you are a public official. In your private capacity, you are a principal in the Firm, which is located in Delaware County. The Firm is the solicitor for a number of municipalities and school districts. You are the primary attorney for some of those accounts, while other attorneys in the Firm are the primary attorneys on the other accounts. All fees generated from the solicitorships are deposited into the general operating account of the Firm. Your inquiry relates to block ten of the Statement of Financial Interests form, titled "Direct or Indirect Sources of Income." You ask whether you must list as sources of income municipalities and school districts for which the Firm is solicitor. You express your view that you should list the Firm as a source of income and should not list any of the individual clients of the Firm as a source of income. 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 Pur io, 06 -585 September 27, 2006 Page 2 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 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. As a Member of Delaware County Council, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the financial disclosure requirements of the Ethics Act. Section 1104(a) of the Ethics Act provides: §1104. Statement of financial interests required to be filed (a) Public official or public employee. - -Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. §1104 (a). Section 1105(b)(5) of the Ethics Act sets forth the following requirements regarding disclosure of sources of income: § 1105. Statement of financial interests (b) Required information. - -The statement shall include the following information for the prior calendar year with regard to the person required to file the statement: (5) The name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges. 65 Pa.C.S. § 1105(b). See also, the Commission Regulations at 51 Pa.Code § 17.4(a). On its face, Section 1105(b)(5) requires the filer to disclose the name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. However, the filer is not required to disclose confidential information protected by Pur io, 06 -585 September 27, 2006 Page 3 statute, existing professional codes of ethics (such as the Rules of Professional Conduct applicable to attorneys) or common law privileges. In applying the above provisions of the Ethics Act to your inquiry, you are advised that you would not be required to list as a source of income any of the municipalities and school districts for which the Firm is the solicitor. Under the submitted facts, the Firm is the solicitor and all fees generated from the Firm's solicitorships are deposited in the Firm's general operating account. The source of your income relative to such work for the Firm would be considered to be the Firm and not the municipalities or school districts as individual clients of the Firm. Additionally, it is noted that to the extent the identity of a Firm client would be considered confidential information protected by the Rules of Professional Conduct, such information would not need to be disclosed on the Statement of Financial Interests form. 65 Pa.C.S. § 1105(b)(5). 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. Conclusion: As a Member of Delaware County Council, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. Under the submitted facts that you are a principal in a law firm (the "Firm "), the Firm is the solicitor for a number of municipalities and school districts, you are the primary attorney handling the work for some such solicitorships, and all fees generated from the Firm's solicitorships are deposited in the Firm's general operating account, you would not be required to list as a source of income on your Statements of Financial Interests any of the municipalities and school districts for which the Firm is the solicitor. The source of your income relative to such work for the Firm would be considered to be the Firm and not the municipalities or school districts as individual clients of the Firm. 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 Pur io, 06 -585 September 27, 2006 Page 4 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