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HomeMy WebLinkAbout85-539 KayWendell R. Kay, Esquire Court & Eleventh Street Honesdale, PA 18431 Dear Mr. Kay: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 April 24, 1985 ADVICE OF COUNSEL 85 - 539 Re: Conflict of Interest; Simultaneous Service; Borough Councilman; Solicitor This responds to your letter of April 1, 1985, requesting the advice of the State Ethics Commission. Issue: Whether any conflict of interest exists if you serve as a member of a borough council and also act as a solicitor for other political sub- ' divisions. Facts: You are currently a candidate for borough council in Honesdale, Wayne County, Pennsylvania. You are also a practicing attorney and maintain a general practice in Honesdale, Pennsylvania. In relation to the above, you ask the following questions with reference to the State Ethics Act: 1) If elected to Honesdale borough council, may you act as Borough or Township Solicitor for any other political sub - division in Wayne County? 2) Would serving on borough council constitute a conflict of interest with reference to representing criminal defendants? 3) Would your serving on Borough Council constitute a conflict of interest regarding any work which you do for Wayne County, Pennsylvania? Discussion: At the outset, it should be noted that the Ethics Commission may not address the questions presented herein under any other statute, such as the Borough Code, or other code of conduct. The Commission may only review the issues presented within the purview of the State Ethics Act. As an elected member of the borough council, you would be a public official as that term is defined in the State Ethics Act. 65 P.S. §402; Davis, 84 -012. As such, your conduct as such an official, if elected, must co nform to the requirements of the State Ethics Act. Wendell R. Kay, Esquire April 24, 1985 Page 2 Initially, with respect to the first two questions presented, the Commission does not have the jurisdiction or authority to address these issues. Generally, these questions relate to conflicts of interest that you may or could encounter in your capacity as an attorney. In Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 62 Pa. Comm. 88 434 A.2d 1327, (1981); affirmed per curiam 498 Pa. 589, 450 A.2d 13, (1982), it was held that the State Ethics Act could not be applied to restrict or regulate the conduct of attorneys in their practice of law. See also, Kury v. State Ethics Commission, Pa. Commw., 435 A.2d 940, (1981). Additionally, as a part -time municipal solicitor you would not be a public official or public employee as that term is defined in the State Ethics Act. Ballou v. State Ethics Commission, 56 Pa. Comm. 240, 424 A.2d 983, (1981) affirmed 436 A.2d 186, 496 Pa. 127 (1981). In light of these decisions, the Ethics Act would appear to be `inapplicable insofar as it would be applied to your practice of law or to you as a part -time municipal solicitor. Your conduct as an attorney is governed by the Pennsylvania Supreme Court and the Code of Professional Responsibility. Insofar as you believe that a conflict of interest may exist, you should consult that authority for further guidance. As noted previously, as a borough councilman, you would be a public official and, thus, your conduct in that position would be governed by the Ethics Act. Generally, the State Ethics Act provides that: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within this provision, you as a member of the council may not use that position in order to obtain any financial gain for yourself or your law firm. In this respect, you could not participate in any decision that would result in the award to your firm by the council of any appointments, employment or borough related business. Additionally, you may not utilize any confidential information obtained in your council position to personally benefit yourself or your law firm. For example if you as a private attorney were involved in representing a matter or person before the Council, you may be privy to information obtained in your official position. The use of such information if confidential would be prohibited by the Ethics Act. Wendell R. Kay, Esquire April 24, 1985 Page 3 The Ethics Act may also address other areas of possible conflicts of interest or the appearance thereof. 65 P.S. §403d; 5401. Generally, such a conflict or appearance arises when a public official serves one or more adverse interest. Alfano, 80 -007. Within these requirements, you may not, as a member of council participate or vote on any matter in which you as a private party were involved or in which you represent another before the council. You should also abstain from matters involving persons or entities whom you serve in your capacity as a private practitioner. In this way you will avoid both a conflict of interest and the appearance thereof. Conclusion: The Ethics Act, places no restriction upon your activities as an attorney engaged in the practice of law. In your capacity as a borough councilman you are a public official and your activities as such must conform to the requirements of the Ethics Act as outlined above. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJC /sfb Sincerely, ohn J. ino Genera Counsel