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07/22/97 C.P.C. v. STATE ETHICS COMMISSION

July 22, 1997

C.P.C., ESQ., PETITIONER
v.
STATE ETHICS COMMISSION, RESPONDENT



Appealed From No. 95-034-C2. State Agency State Ethics Commission.

Before: Honorable James Gardner Colins, President Judge, Honorable James R. Kelley, Judge (p.), Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Kelley.

The opinion of the court was delivered by: Kelley

OPINION BY JUDGE KELLEY

FILED: July 22, 1997

C.P.C., Esquire (CPC) appeals, by permission, from an interlocutory order of the State Ethics Commission (Commission) which: (1) denied a motion in the form of a preliminary objection filed by CPC to a complaint filed by the Investigative Division of the Commission; (2) directed CPC to file an answer to the complaint; (3) denied a request by CPC for a wrongful use of act review; and (4) determined that its order would not be publicly released. *fn1

CPC is a member of the Pennsylvania Bar and has been licensed to practice law in this Commonwealth since 1982. From January 1992 until November 1993, CPC served as the solicitor for the Borough of Throop (borough). CPC was appointed borough solicitor by a unanimous vote of the Throop Borough Council (Borough Council).

On December 27, 1995, the Investigative Division of the Commission issued a complaint to CPC. The complaint related to alleged violations of section 3(a) of what is commonly referred to as the State Ethics Act (Ethics Act) *fn2 by CPC while he was serving as borough solicitor. The complaint alleged that CPC violated the Ethics Act when: (1) he used the authority of his office to obtain a private pecuniary benefit for himself and/or a business with which he was associated; (2) he advised Borough Council to release funds from a borough-controlled escrow account to the Throop Property Owners Environmental Trust Fund (Fund) for the benefit of the Throop Property Owners Association (Association) at a time when he knew, or should have known, that he would be appointed solicitor for the Fund and/or Association and receive compensation therefrom; (3) he advised Borough Council to pay legal fees and/or court costs to the Association and/or turn the borough's control of the Fund over to the Association at a time when he was being compensated to serve as solicitor for the Fund and/or the Association and at a time when the Association was considering legal action against the borough; and (4) he billed and was paid by the borough for legal services which had already been paid by the borough through a separate agreement.

On February 26, 1996, CPC filed with the Commission a motion in the form of a preliminary objection to the complaint. CPC asserted that the Commission has no jurisdiction over the ethical behavior of members of the Pennsylvania Bar who are part-time borough solicitors. Rather, he argued that the power to investigate and prosecute the activities of attorneys is exclusively vested in our Supreme Court. CPC also asserted that his due process rights were violated because the Commission did not provide him with any notice that it intended to exercise jurisdiction over borough solicitors. CPC asked the Commission to hear evidence and then dismiss the complaint for lack of subject matter jurisdiction, issue an opinion as to its alleged jurisdiction over part-time solicitors, provide him with a full evidentiary hearing should one be necessary, and appoint an objective reviewer to determine whether any person had initiated the proceeding against him in violation of the law.

By amended interlocutory order dated July 3, 1996, the Commission (1) denied, without prejudice, CPC's motion in the form of a preliminary objection; (2) directed CPC to file an answer to the complaint; (3) denied, without prejudice, CPC's request for a wrongful use of act review; (4) determined that its order would not be publicly released; and (5) stated that its order involved a controlling question of law for which an immediate appeal would be appropriate. All proceedings before the Commission were stayed. CPC then filed with this court a petition for permission to appeal which was granted.

On October 3, 1996, CPC filed with this court a motion which requested, inter alia, that the appellate record in this case be sealed from public inspection. By order dated October 18, 1996, this court granted the motion to seal the record from public inspection, but stated that such a determination should be reconsidered by the court at the Conclusion of oral argument in this case.

In this appeal, CPC raises the following issues for our review: (1) whether the Commission lacks jurisdiction to file, prosecute and decide a complaint alleging a conflict of interest under section 3(a) of the Ethics Act against a member of the Pennsylvania Bar who is appointed to be a borough solicitor; (2) whether the Commission's refusal to hold a hearing on the issue of CPC's jurisdictional claim constitutes a denial of his due process rights; and (3) whether the facts in this case are sufficient to warrant granting the relief requested by CPC.

Initially, we note that preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992). The test is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his or her right to relief. Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, 835 (1976).

CPC first asserts that the Commission had no jurisdiction over his conduct. He argues that only an attorney who is a salaried employee of a governmental agency or body on a full-time basis is governed by the provisions of the Ethics Act, the same as any other full-time, salaried public employee.

It is clear that the General Assembly is precluded from exercising powers which have been entrusted to the judiciary. Kremer v. State Ethics Commission, 503 Pa. 358, 469 A.2d 593 (1983). Our Supreme Court has been given the authority to regulate the courts by Article V, Section 10 of ...


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