Keller v. State Ethics Commission

Dissenting Opinion by

Judge LEAVITT.

I join Judge Friedman’s dissent.1 I write separately to note additional flaws in the Ethics Commission’s position and the confusion it will cause.

The purpose of the Ethics Act is to preserve the public trust and thereby increase the confidence of Pennsylvania citizens in their state and local governments. This goal has been expressed by the General Assembly as follows:

*671Declarations. — The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of this Commonwealth in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or nominees or candidates for public office do not conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this chapter shall be liberally construed to promote complete financial disclosure as specified in this chapter. Furthermore, it is recognized that clear guidelines are needed in order to guide public officials and employees in their actions. Thus, the General Assembly by this chapter intends to define as clearly as possible those areas which represent conflict with the public trust.

65 Pa.C.S. § 1101.1(a) (emphasis added). By affirming the Ethics Commission’s adjudication, the majority concludes that Keller has violated the public trust.

The Ethics Commission reached its conclusion by way of a strained reading of the Borough Code. First, it held that Keller had a “duty” under the Borough Code to perform wedding ceremonies.2 The Ethics Commission was on equally infirm ground when it found that Keller violated the compensation limit established in the Borough Code. Keller’s annual salary of $2,500 does not include compensation for officiating at weddings because that is not a “duty imposed” by The Borough Code.3 At the same time, the Borough Code does not proscribe a mayor from receiving compensation for services unrelated to the specific duties enumerated in The Borough Code.

In support of its position that Keller reaped a private pecuniary benefit,4 even though the funds he received were given to charity, the Ethics Commission relies heavily on “the specific debate of the General Assembly on this exact issue.” Ethics Commission’s Brief at 23. This debate occurred during reenactment of the Ethics Act in 1989 and centered on a proposed amendment that would have permitted a public official to accept an honorarium in the form of a donation directed to a partic*672ular charity.5 The Ethics Commission argues that many of the concerns expressed by members of the General Assembly in rejecting the amendment are similar to the concerns raised by Keller’s conduct, i.e., that allowing a public official to serve as a conduit for a charitable contribution would amount to electioneering and could invite arbitrary decisions as to what is a qualified charitable organization.

First, this Court cannot rely on debate that occurs on the floor of the House or Senate as a tool for construing the Ethics Act.6 Second, the Ethics Commission’s argument on this point highlights an inconsistency in its position. A payment of $150 for performing a wedding is an “honorarium” within the common understanding of that term. However, the Ethics Commission did not charge Keller with violating the no-honorarium rule because the statutory definition of “honorarium” does not match the common understanding of that word.7 Mysteriously, and inconsistently, the Ethics Commission did not feel so constrained by the statutory definition of “authority.”

If the Ethics Commission believed that a mayor’s acceptance of $150 for performing a wedding service — or directing $150 to a charity — violated the public trust, it should have adopted a regulation to announce that interpretation.8 This would have permitted public comment on whether the interpretation was correct, and it would have given all public officials advance notice of what was expected by the Ethics Commission. Instead, the Ethics Commission chose to make this pronouncement in the context of an enforcement action against a single mayor more than 28 years after the first enactment of the Ethics Act.9 Further, had the mayor suggested that persons he joined in marriage make a contribution directly to a charity, this also would have been a violation, in the view of the Ethics Commission.

The Ethics Act promises “clear guidelines” by which public officials may order their conduct in order to increase public confidence in government. Here, individuals who thought they were making a contribution to charity will, instead, be making a gift to the Borough of New Hope.10 It *673is difficult to see how this switch will increase confidence in government. The Commission’s adjudication, affirmed by the majority, has left the ethical waters in Pennsylvania muddied because of the premise that mayors have a “duty” to conduct weddings. Must mayors do so for free? May boroughs require their mayors to conduct services and charge for this “borough service” as a way to fill borough coffers? If a mayor declines to officiate at a wedding can he be compelled to do so by writ of mandamus? 11 We are a long way from the clarity promised by the legislature in the Ethics Act.

I would reverse.

Judge FRIEDMAN joins in the dissent.

. Judge Friedman's decision is firmly rooted in the Ethics Act. Keller did not use the "authority” of his office for "private pecuniary” gain as those terms have been carefully defined by the legislature.

.Sections 1028 and 1029 of The Borough Code, Act of February 1, 1996, P.L. (1965) 1656, as amended, 53 P.S. §§ 46028, 46029, establish the "duties” of a mayor. They are those expected of the executive branch: to administer the borough by enforcing ordinances. Under the rule of ejusdem generis, the catchall other duties in 53 P.S. § 46029 must be understood as advancing the executive branch functions. See, e.g., Commonwealth v. Simmons, 211 Pa.Super. 344, 236 A.2d 563, 565 (1968) (general expressions must be restricted to concepts similar to those specifically enumerated in preceding language). Administering wedding vows does not “pertain” to borough affairs or really have anything to do with borough governance.

. Section 1025 of The Borough Code states:

The salary of the mayor shall he established by ordinance and shall not exceed, in boroughs with a population of less than five thousand, a maximum of two thousand five hundred dollars ($2500) a year. Such sa-lara[y] shall be payable monthly or quarterly for the duties imposed by the provisions of this act.

53 P.S. § 46025 (emphasis added). The authority to conduct weddings is an incident of office, not a duty.

. Because Keller donated all payments to charity this is not a gain under The Ethics Act. This is not to say that Keller did not realize taxable earned income, but that is a legal issue for other authorities. It is not a concern of the Ethics Commission.

. Section 1103 of the Ethics Act states unequivocally that "[n]o public official or public employee shall accept an honorarium.” 65 Pa.C.S. § 1103(d). It defines "honorarium” as follows:

A payment made in recognition of published works, appearances, speeches and presentations and which is not intended as consideration for the value of such services which are nonpublic occupational or professional in nature. The term does not include tokens presented or provided which are of de minimis economic impact.

65 Pa.C.S. § 1102.

. It is axiomatic that floor debates do not constitute legislative history for purposes of statutory interpretation. Nemacolin, Inc. v. Department of Environmental Resources, 115 Pa.Cmwlth. 462, 541 A.2d 811, 814-815 (1988).

. The definition of "honorarium” in the Ethics Act is admittedly difficult to parse.

. Further, regulation may save a statute from a vagueness challenge by providing the necessary specifics to an otherwise vague or over-broad statute. See, e.g., Jones v. Foster, 148 Pa.Cmwlth. 303, 611 A.2d 332 (1992).

. Indeed, if it were so clear that the Ethics Act does not allow mayors to collect something for joining persons in marriage, it should not have taken the Ethics Commission a generation or so to discover this point.

. This "remedy” further highlights the problems here. A true conflict of interest lies where, for example, a mayor, acting on behalf of the municipality he serves, lets a no-bid contract to his own construction company. A return of profits to the municipality makes perfect sense in that circumstance. By contrast, the affairs of the Borough of New Hope have been completely unaffected by Keller's conduct in conducting weddings.

. In the first oral argument on this appeal, the Ethics Commission stated the belief that a mayor could be compelled to conduct weddings by writ of mandamus.