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FEDERATION STATE CULTURAL AND EDUCATIONAL PROFESSIONALS v. COMMONWEALTH PENNSYLVANIA (08/22/88)

decided: August 22, 1988.

FEDERATION OF STATE CULTURAL AND EDUCATIONAL PROFESSIONALS, PENNSYLVANIA STATE EDUCATION ASSOCIATION, ROSS BLUST AND GEOFFREY S. LUCAS, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION AND OFFICE OF GENERAL COUNSEL, COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Original Jurisdiction in the case of Federation of State Cultural and Educational Professionals, Pennsylvania State Education Association, Ross Blust and Geoffrey S. Lucas v. Commonwealth of Pennsylvania, Department of Education and Office of General Counsel, Commonwealth of Pennsylvania.

COUNSEL

Mark P. Widoff, with him, Mary Catherine Frye, Widoff, Reager, Selkowitz & Adler, P.C., and Lynne Wilson, for petitioners.

Joel M. Ressler, Senior Deputy Attorney General, with him, John G. Knorr, III, Chief Deputy Attorney General, Chief of Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and McGinley. Opinion by Judge MacPhail. Dissenting Opinion by Judge Craig.

Author: Macphail

[ 119 Pa. Commw. Page 64]

Petitioners seek summary judgment in an action for declaratory judgment filed in our original jurisdiction. We will enter a declaratory judgment in their favor.

There appears to be no material factual dispute in this case. Petitioners Blust and Lucas are employees of the Department of Education (Department). Blust is an Educational Measurement and Evaluation Supervisor; Lucas is an academic counselor at the Huntingdon State Correctional Institution.

[ 119 Pa. Commw. Page 65]

Blust filed a supplemental employment request with the Department pursuant to Management Directive No. 515.18 issued by the then Secretary of Administration, seeking permission to teach a night course at Temple University's downtown Harrisburg facility and at Pennsylvania State University's Harrisburg Campus. Lucas sought permission to work at night as an academic counselor for an adult literacy program conducted by the Huntingdon County Child and Adult Development Corporation.

Because the Department had contracts with Temple University, Pennsylvania State University, and Huntingdon County Child and Adult Development Corporation, both requests were denied by the Department on the basis that the supplemental employment would, in the opinion of the Department, violate the State Adverse Interest Act (Act), Act of July 19, 1957, P.L. 1017, as amended, 71 P.S. §§ 776.1-776.8.

Neither Blust nor Lucas had any role in negotiating, recommending, influencing or implementing the Department's contracts with Pennsylvania State University, Temple University or Huntingdon County Child and Adult Development Corporation.

Petitioners seek a declaratory judgment from this Court holding that the Act does not prohibit state employees from engaging in after-hours supplemental employment where no actual adverse interest exists, or, in the alternative, a judgment declaring that the Act as applied to Blust and Lucas is unconstitutional, because (1) it violates the Fourteenth Amendment to the Constitution of the United States and Article I, Section 1 of the Constitution of Pennsylvania; (2) it is unconstitutionally vague; and (3) it violates the due process clauses of the United States and Pennsylvania Constitutions.

First adopted in 1957 and last amended in 1982, the Act provides for an automatic forfeiture of state employment

[ 119 Pa. Commw. Page 66]

    and criminal penalties for violations of its provisions.

Section 5 of the Act, 71 P.S. § 776.5 provides that:

No State employe shall have an adverse interest in any contract with the State agency ...


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