Ballou v. State Ethics Commission

KAUFFMAN, Justice,

dissenting.

I disagree with the majority’s holding that appellee is neither a public employee nor official subject to the Ethics Act’s financial disclosure requirements. He clearly is included within the statutory definition of both of these categories, and should therefore file the financial disclosure statements required of all other public employees and officials in this Commonwealth.

The Ethics Act defines a “public employee” as:

Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a non-ministerial nature with regard to:

(1) contracting or procurement;

(2) administering or monitoring grants or subsidies;

(3) planning or zoning;

(4) inspecting, licensing, regulating or auditing any person; or

(5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person.

65 Pa.C.S.A. § 402. When a statute is clear and unambiguous, we must read its provisions in accord with their plain meaning. Stegmaier Estate, 424 Pa. 4, 8 , 225 A.2d 566, 568 (1967); Davis v. Sulcowe, 416 Pa. 138, 143 , 205 A.2d 89, 92 *137 (1964). Since appellee as solicitor for a borough, township, county coroner, and industrial development authority clearly is responsible for recommending and advising a wide variety of official actions of a nonministerial nature, the majority errs in holding that he does not have sufficient nonministerial duties to be a “public employee” subject to the Ethics Act’s financial disclosure requirements. 1

Moreover, the Ethics Act defines a “public official” as “any elected or appointed official in the Executive, Legislative, or Judicial Branch of the State or any political subdivision thereof.” 65 Pa.C.S.A. § 402 (emphasis supplied). The only officials exempted from the statute’s broad coverage are “members of advisory boards that have no authority to expend public funds other than reimbursement for personal expenses or to otherwise exercise the power of the State or any political subdivision thereof” and “any appointed official who, receives no compensation other than reimbursement for actual expenses.” Id. Appellee is an appointed official, clearly within the Act’s coverage by its very terms, and is not a member of either group of exempted officials. Cf. Wajert v. State Ethics Commission, 491 Pa. 255, 261 , 420 *138 A.2d 439, 442 (1980) (term “public official” in Ethics Act includes a judge who has retired or resigned). 2

Pennsylvania’s Legislature adopted the Ethics Act to restore confidence in government and to insure that public employees and officials are accountable to the public rather than to private interests. 65 Pa.C.S.A. § 401. Because public faith and confidence in government can best be strengthened and sustained by assuring the impartiality and honesty of public employees and officials, the Act must be “liberally construed to promote complete disclosure.” Id. In exempting certain public employees and officials from the Act’s financial disclosure requirements simply because they also are attorneys, the majority today unnecessarily creates a select, privileged class, thereby thwarting both the salutary legislative policy of restoring public confidence in government and the commendable efforts of the legal profession to achieve much-needed improvement of its public image. 3

*139 I would therefore hold that the duty of financial disclosure imposed by the Legislature as an incident of assuming and retaining positions of public trust in this Commonwealth apply to all “public employees” and “officials,” including lawyers.

NIX, J., joins in this dissenting opinion.

. The Second Class Township Code provides that “the law matters of the township shall be under the superintendence, direction, and control of the township solicitor.” 53 Pa.C.S.A. § 65581. Further, the township solicitor:

shall prepare or approve such bonds, obligations, contracts, leases, conveyances, ordinances and assurances to which the township may be a party; he shall commence and prosecute all actions brought by the township ... as well as defend all actions or suits against the township ... and shall do every professional act incident to the office which he may be authorized or required to do by the board of supervisors or by any resolution.

53 Pa.C.S.A. § 65582. Pennsylvania law prescribes similar duties for borough and county coroner solicitors, see 53 Pa.C.S.A. § 46117; 16 Pa.C.S.A. § 1252 (Supp.1981-82), and while appellee’s duties as solicitor to an industrial development authority are not specifically prescribed by statute, the majority acknowledges that these duties do not vary in any significant respect from the legal duties which he performs as township, borough, and county coroner solicitor. Such duties, which involve considerable discretion, are far from ministerial. Indeed, a township could not function if they were not performed or were ineptly handled. See Snyderwine v. Craley, 434 Pa. 349, 354-55 , 254 A.2d 19 , 20 (1980).

. I note that Wajert, supra, which suggested that the Ethics Act, as applied to attorneys’ conduct, unconstitutionally infringes upon this Court’s exclusive power to govern the conduct of attorneys, id., 491 Pa. at 262 , 420 A.2d at 442 , does not mandate the majority’s holding that appellee is exempt from the Act’s financial disclosure requirements. Wajert indicated that the Act’s provisions governing conflicts of interest for public officials and employees might unconstitutionally infringe upon this Court’s regulation of attorneys under the Code of Professional Responsibility. The financial disclosure provisions of the Act, however, do not regulate attorneys’ conduct; nor are they inconsistent with the Code of Professional Responsibility. These provisions merely require financial disclosure as an incident to appellee’s duties as a public official and employee, and interfere with this Court’s powers to regulate attorneys’ conduct no more than does the unchallenged requirement that an oath be taken before assuming public office. The Legislature plainly has the constitutional power to define the duties of all public officials and employees, including those who also happen to be attorneys. Realistically, the myriad of non-ministerial public duties performed by any public employee or official, as those positions are defined by the Act, extend far beyond the practice of law as contemplated by the Code of Professional Responsibility. Accordingly, any exception to the general duty of financial disclosure artificially carved from the Act solely for attorneys would be manifestly unjust and unreasonable.

. The majority suggests that because appellee “closely resembles” a “state consultant” as defined by the Act, he is exempt from its *139 disclosure requirements. It is manifest, however, that appellee’s duties as solicitor for a township, borough, county coroner, and industrial development authority, for which he receives a salary, are far more comprehensive than those of an “independent contractor,” such as an outside attorney or law firm specially retained for the trial of particular litigation, receiving only a “fee, honorarium or similar compensation” for particular services rendered. 65 Pa.C.S.A. § 402.