Appealed From No. similar ORIGINAL JURISDICTION similar.
Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Jim Flaherty, Judge. Opinion BY Judge Pellegrini. Judge Smith Dissents.
The opinion of the court was delivered by: Pellegrini
OPINION BY JUDGE PELLEGRINI
Before this court is a motion by the Pennsylvania State Ethics Commission (Ethics Commission) for summary judgment to a petition for review filed by P.J.S. in our original jurisdiction. P.J.S.'s petition requests an injunction prohibiting further action against him by the Ethics Commission and a declaration that the Ethics Commission does not have jurisdiction for any action against him, and that such action would violate his constitutional rights. In P.J.S. v. Pennsylvania State Ethics Commission, 669 A.2d 1105 (Pa. Commw. 1996) (P.J.S. I), we overruled the Ethics Commission's preliminary objections to the petition. As a result, the Ethics Commission filed an answer to the petition and discovery proceeded, including several depositions. Based on facts established by the depositions, the Ethics Commission then filed this motion for summary judgment.
P.J.S., an attorney licensed by the Supreme Court of Pennsylvania, was hired in January of 1990 as a full-time solicitor for the City of Erie. *fn1 The City agreed that P.J.S. could maintain an outside law practice with his firm while serving as solicitor. He was placed on the City payroll and was paid a salary and received the same benefits as other employees of the City. While he was permitted to work flexible hours, he was considered and expected to be a full-time employee by the mayor of the City, to whom he reported.
In 1993, the Estate of David Johnson filed suit against the City, the mayor and the chief of police. The City's insurer, which was obligated to defend the City in the suit, requested that P.J.S. and his law firm represent the City. While continuing to serve as solicitor, P.J.S. agreed to represent the City's insurer in the suit against the City. *fn2 The Ethics Commission received a complaint based on this agreement and alleging other ethics violations by P.J.S., and it began an investigation. In response, *fn3 P.J.S. filed this petition for review in an effort to prevent the investigation and any action against him by the Ethics Commission.
Since this petition was filed, the Ethics Commission finished its investigation and issued a Findings Report maintaining that because he was the City's solicitor, P.J.S.'s representation of the City through his law firm violated Section 3(a) and (f) of the Ethics Act, 65 P.S. § 403(a) and (f). *fn4 Although the case is ready to proceed to the Ethics Commission, which would conduct a full evidentiary hearing, the Ethics Commission has stayed its proceedings pending a decision of this court.
The conflict of interest provisions contained in Section 3 of the Ethics Act, 65 P.S. § 403, provide in pertinent part:
(a) No public official or public employee shall engage in conduct that constitutes a conflict of interest.
(f) No public official or public employee ... shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process...
The Ethics Commission contends that it is entitled to summary judgment because the facts established through the pleadings and depositions are that P.J.S. was a full-time, salaried employee of the City and, as such, he was, as a matter of law, a public employee subject to the conflict of interest provisions of the Ethics Act. P.J.S. challenges the motion for summary judgment by asserting that material issues of fact exist and by arguing that the legislature did not intend that a solicitor, who maintains a private practice, be a public official subject to the conflict of interest provisions. *fn5
The first issue of material fact asserted by P.J.S. is that although he provided legal services to the City from January 1990 through April 1994, he was never duly appointed as solicitor because City Council never ratified his appointment pursuant to the applicable City ordinance. While this may be true, we have found no law nor is any cited to establish that an individual acting as solicitor, albeit without all the procedural aspects of his appointment completed, is not subject to the rules which may apply to solicitors duly appointed. Therefore, this assertion is not a material fact which would prevent the entry of summary judgment.
P.J.S. also raises several points of fact on which the parties disagree, such as whether he actually continued in private practice (Ethics Commission Answer and New Matter P47), and whether he used his private law office, equipment, books and supplies in performing legal services for the City (Ethics Commission Answer and New Matter P43 and P.J.S. Reply to New matter P43). Although the parties do not agree as to these facts, they ...