Federation of State Cultural & Educational Professionals v. Commonwealth

Opinion ry Judge MacPhail, 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. [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 i in 1982, the Act provides for an automatic forfeiture of state employ [66] ment 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 by which he is employed. Section 2(4) of the Act, 71 P.S. §776.2(4) in turn defines “have an adverse interest”: Be the party to a contract, as herein defined, other than the Commonwealth or a State agency or be a stockholder, partner, member, agent, representative or employe of such party. Section 2(2) of the Act, 71 P.S. §776.2(2), defines “contract” as: A contract or arrangement for the acquisition, use or disposal by a State agency of services or of supplies, materials, equipment, land or other personal or real property. . . . The Department maintains that the principal purpose of the Act is to strengthen public confidence in the integrity of the States employees and the States contracting system. We would be hard put not to agree that that is a laudable purpose in these times. It is the Departments position that merely by virtue of its having contracts with Blusts and Lucas proposed supplemental employers, the employees are barred from engaging in that employment. Petitioners argue that the Department has invoked a hypertechnical interpretation of the Act to deny Blusts and Lucas’ applications. If it were not for the statutory definition of “have an adverse interest,” we would have little difficulty in agreeing with Petitioners’ argument. In its usual context, “adverse” means antagonistic, harmful or detrimental.1 No argument is made that the employment [67] sought for approval by Blust and Lucas would, in any way, be antagonistic, harmful or detrimental to the Department. Indeed, no argument is made that Blust and Lucas have any interest in the contracts between the Department and the proposed supplemental employers. Where, however, the legislature has taken pains to define the terms it has used in a statute, we, as a Court, may not ignore that definition. Both Petitioners and the Department refer us to pertinent provisions of the Statutory Construction Act of 1972 (SCA), 1 Pa. C. S. §§1501-1991. According to Section 1921(a) of the SCA, 1 Pa. C. S. § 1921(a), the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly and every statute shall be construed, if possible, to give effect to all of its provisions. Section 1921(b) of the SCA, 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. Section 1922 of the SCA, 1 Pa. C. S. §1922, provides, inter alia, that in ascertaining the intention of the legislature, we may presume that the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable, and we may presume that the General Assembly does not intend to violate the Constitutions of the United States or of the Commonwealth. None of the few reported cases construing the Act2 has addressed the narrow issue presented to us in this [68] case, i.e., where no actual adverse interest is shown, are state employees prohibited from engaging in supplemental employment with entities which have contracts with the state agency employer? We are of the opinion and so hold that the Departments construction of the Act has led to an unreasonable, if not absurd, result in this case. A somewhat analogous case was before our Supreme Court in Secretary of Revenue v. John's Vending Corporation, 453 Pa. 488, 309 A.2d 358 (1973). In that case, a corporations Wholesale Cigarette Dealers License was revoked because a fifty percent shareholder of the corporation and its president had some twenty years before been convicted of crimes involving moral turpitude, a feet not disclosed by the corporation in its application for a license. Justice (now Chief Justice) Nix, noting that crimes committed in such a remote period of time have little bearing in evaluating the individuals present character,3 wrote: In order to avoid an absurd and harsh result, the court may look beyond the strict letter of the law to interpret a statute according to its reason and spirit and accomplish the object intended by the legislature. 453 Pa. at 494, 309 A.2d at 362 (citations omitted). [69] We think the same reasoning should be applied here. To subject employees to the risk of loss of employment and criminal prosecution for employment activities totally unrelated to the employees’ regular employment is, we believe, beyond the intention of the legislature and the spirit of the Act. We further opine that the Department’s rejection of Blust’s and Lucas’ supplemental employment application would not advance the intention of the legislation to strengthen the public confidence in the integrity of State employees and the State’s contracting practices. In that regard, we find helpful Judge (now Senior Judge) Blatt’s statement in Storch, a case not binding upon us as precedent but useful for persuasive value, that the Act does not prohibit a Commonwealth employee from engaging in a supplemental law practice—it only restricts and limits the degree to which an employee can do so. Our decision does not, of course, eliminate the requirement that State employees subject to Management Directive No. 515.18 must file an application for approval of supplemental employment. Where the State determines that such employment is in feet adverse, such requests must be denied. But where, as here, the only connection between the employee’s State employment and the requested supplemental employment consists of unrelated contracts between the State and the proposed supplemental employer, the Act does not apply. Having determined that it is not necessary for us to consider the constitutional questions raised by Petitioners, we decline to do so. See Shuman v. Bernie’s Drug Concessions, 409 Pa. 539, 187 A.2d 660 (1963). Order The judgment of this Court is that the provisions of the Adverse Interest Act, Act of July 19, 1957, PL. [70] 1017, as amended, 71 P.S. §§776.1-776.8 are inapplicable to applications for supplemental employment in the absence of a determination that actual adverse interest is present. It is ordered that the Department of Education shall grant the supplemental employment requests of Ross Blust and Geoffrey S. Lucas. Footnotes [1] See Webster’s Third New International Dictionary (1986). [2] Flaherty v. Allegheny Port Authority, 450 Pa. 509, 299 A.2d 613 (1973) held that there was no violation of the Act where a corporation sought to bid on equipment for a project for which it had prepared a preliminary engineering report later adopted by the Port Authority. Storch v. Pennsylvania Board of Probation and Parole, 68 Pa. Commonwealth Ct. 74, 449 A.2d 760 (1982) involved an attorney who was employed as a parole agent and who sought to [68] engage in the private practice of law after filing a statement with the Board that her practice would be limited to non-criminal and non-state related matters. Commonwealth v. Hughes, 21 Pa. D. & C. 2d 381 (1960) concerns a state highway employee who purchased and then rented to the Department of Transportation a bulldozer and collected the rentals for himself. [3] The Court also pointed out, as do Blust and Lucas here, that every citizen has an inalienable right to engage in lawful employment and that the State may not interfere with that right, unless such deprivation is reasonably related to the State interests sought to be protected.