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RICHARD A. BALLOU v. STATE ETHICS COMMISSION ET AL. (01/22/81)

decided: January 22, 1981.

RICHARD A. BALLOU, PETITIONER
v.
STATE ETHICS COMMISSION ET AL., RESPONDENTS



Original jurisdiction in case of Richard Ballou v. State Ethics Commission, et al.

COUNSEL

Victor L. Drexel, for petitioner.

Sandra S. Christianson, General Counsel, for respondent, State Ethics Commission.

Michael L. Harvey, Deputy Attorney General, with him Robert B. Hoffman, Deputy Attorney General, Allen C. Warshaw, Deputy Attorney General, Chief of Civil Litigation, and Harvey Bartle, III, Acting Attorney General, for respondent, Harvey Bartle, III, Acting Attorney General.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Craig, MacPhail, Williams, Jr. and Palladino. Opinion by Judge Rogers. Dissenting Opinion by Judge Craig.

Author: Rogers

[ 56 Pa. Commw. Page 242]

The Act of October 4, 1978 (Ethics Act), P.L. 883 65 P.S. § 401 et seq. requires public officers and employees annually to file statements of their financial interests.*fn1 Richard D. Ballou has filed a Petition for Review addressed to our original jurisdiction seeking injunctive and declaratory relief from this requirement which The State Ethics Commission, the agency charged with enforcing the Ethics Act, has by regulation declared applies to municipal solicitors. Mr. Ballou who serves as solicitor to a county coroner, a municipal authority and several townships, raises questions as to the applicability of the Ethics Act to municipal solicitors and the constitutionality of the financial disclosure requirements. The Ethics Commission, contending that none of Mr. Ballou's attacks has merit, has filed preliminary objections in the nature of a demurrer.*fn2

Mr. Ballou first says that he is not a public employee but an independent contractor. Section 2 of the Ethics Act, 65 P.S. § 402, 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 nonministerial nature with regard to:

(1) contracting or procurement;

[ 56 Pa. Commw. Page 243]

(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 economic impact of greater than de minimus nature on the interest of any person.

The phrase used -- "individual employed by the Commonwealth" -- is clearly meant to embrace persons so employed without regard to whether the legal relationship is that of servant or of independent contractor. The Ethics Act addresses the mischief of real or apparent violation of the public trust by those engaged in taking or recommending official action; it is not concerned with the often finicky and precious considerations which attend the process of distinguishing a servant from an independent contractor. When the Ethics Act speaks of employees it refers to all persons in the employ of the public who "take or recommend official action." When the Legislature wishes its statutes to reach only servants, it can do so. See e.g. Section 104 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 22.

Petitioner next says that he is not a public employe because his duties as township solicitor do not include responsibility for recommending or advising official action. This view of the role of municipal solicitor does not do it justice. A township solicitor is a public officer "elected to perform duties of a grave and important character for the benefit of the public during a definite term and in return for a stipulated ...


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