Federation of State Cultural & Educational Professionals v. Commonwealth

Dissenting Opinion by

Judge Craig:

The State Adverse Interest Act1 is based on the fundamental principle that no person can serve two masters with equal faithfulness. It seeks to strengthen public confidence in the integrity of the Commonwealth and its employees by including a provision which provides that no state employee shall moonlight as an employee of an entity which has a contractual relationship with that employees department in state government.

Even where the employees own official duties have no involvement with the outside employer, the state employee, beholden to an entity which provides additional income, may nevertheless have an influential fellow-employee relationship with another state employee who does have a duty to see that the outside employer-contractor renders the Commonwealth the full performance which is due.

The statute is not draconian in its effect. It does not “subject employees to the risk of loss of employment and criminal prosecution for employment activities totally unrelated to the . . . regular employment. . . .” We cannot say that a relationship is totally absent when the sanie individual is serving both masters. Nor does this statutory requirement subject employees to a “risk.” It advises them in advance which moonlighting jobs they should avoid. It does not limit them from *71seeking supplementary employment with the vast number of employers who are not contracting with their department in state government.

The statute could not be more clear. It prohibits a state employee from having any “adverse interest” in any contract with the employees state department. Section 5 of the Act, 71 P.S. §776.5. Then it clearly defines “adverse interest” as, among other things, being an “employee of such party” to a state contract. Section 2(4) of the Act, 71 P.S. §776.2(4).

This court correctly recites that where “the legislature has taken pains to define the terms it has used in a statute, we, as a Court, may not ignore that definition.”

Having recognized that principle in this case, this court then cannot validly proceed to ignore the explicit definition.”

This court also correctly declares in this case that the Statutory Construction Act, 1 Pa. C. S. §1921(b), “states that when the words of a statute are clear and free from ambiguity, we should not disregard the letter of it under the pretext of pursuing its spirit.”

Having made that declaration, this court then cannot validly decide that the statute does not mean what it says, concerning moonlighting with a contractor to ones department, merely because this court conceives an opinion that the literal meaning goes “beyond the intention of the legislature and the spirit of the act.” There is mo better evidence of the intention of the legislators than the unambiguous words they used. As the Statutory Construction Act intimates, when a court departs from the words used by the elected lawmakers and enshrines judicial opinion as the “spirit of the Act,” then the court is enacting its own amendment of the law.

Storch v. Pennsylvania Board of Probation and Parole, 68 Pa. Commonwealth Ct. 74, 449 A.2d 760 (1982), provides no analogy helpful to judicial amend*72ment of the statute. S torch indeed approved a state employee engaging in law practice on the side, provided that such law practice did not involve representing any person doing business with the Commonwealth and was confined to civil law, thus avoiding entirely the criminal law field with which the state Board of Probation and Parole is associated. Hence Storch, as an analogy, would argue that outside employment is allowable only if the employer is not doing business with the state and if it is in a field of endeavor distinct from subject matter of the states responsibility.

When a law is clear, the duty of the judiciary is to uphold it, even if the result goes contrary to judicial preference. See Clark v. Department of Public Welfare, 115 Pa. Commonwealth Ct. 597, 540 A.2d 996 (1988) (applying a law which forces medical malpractice award to be used for entire family’s support, rather than to redress the harm done to the one child injured).

The duty of a court is to follow the words of the law when the legislature states them clearly. The legislature itself can amend the law if enforcement according to its terms proves to be unwanted. The judiciary have no power to amend laws.

Act of July 19, 1957, P.L. 1017, as amended, 71 P.S. §§776.1-776.8.