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HomeMy WebLinkAbout89-546 MarroneSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 31, 1989 89 -546 D.T. Marrone MacElree, Harvey, Gallagher & Featherman, Ltd. 17 West Miner Street P.O. Box 660 West Chester, PA 19381 -0660 Re: Attorney, Public Official, County Commissioner Representation, Section 3(a) Dear Mr. Marrone: in which you permissible position of This responds to your letter of April 28, 1989, requested advice from the State Ethics Commission. Issue: You have requested advice regarding the scope of your practice of law while you serve in the County Commissioner. Facts: You state that you are currently an attorney engaged in active practice of law and also Commissioner of Chester County. You question whether you may continue to practice law while serving as a County Commissioner. In this regard you note that you are a member of a law firm and the lawyers in the firm, including yourself, have represented various clients in the areas of zoning and subdivision matters before township agencies. After noting that you personally are engaged in the practice of law generally before all of the courts of the county, you express your understanding that your conduct as an attorney representing clients is regulated by the Supreme Court. You then express an awareness that the Ethics Act would restrict your activities as a commissioner in situations where you would have to perform functions as a commissioner as to matters involving yourself personally or your representation of clients by your firm. You conclude by requesting advice under the Ethics Act as to whether you would be prohibited from representing clients before the Chester County Courts or before Township Supervisors or Zoning Hearing Boards. Discussion: As a County Commissioner, you are a "public D.T. Marrone May 31, 1989 Page 2 official" subject to the provisions of the Ethics Act. 65 P.S. 402; 51 Pa. Code 51.1. Section 3(a) of the Ethics Act provides: 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). In the case of Pennsylvania Public Utility Bar Association v. Thornburah, 434 A.2d 1327, 62 Pa. Cmwlth. 88 (1981), affirmed per curiam 450 A.2d 613, 498 Pa. 589 (1982), the applicability of Section 3(e) of the Ethics Act to attorneys in the regulation of their practice of law was considered. However, you seek clarification of the question of the applicability of the Ethics Act to your situation and any restrictions that might be placed upon your conduct with respect to your practice of law. In light of the decision in Pennsylvania Public Utility Commission Bar Association, supra, where the Court held that Section 3(e) of the Ethics Act, 65 P.S. 403(e), was an impermissible intrusion upon the Supreme Court's authority to regulate an attorney's conduct, the State Ethics Commission has applied this decision to mean that there are no prohibitions under Section 3(e) of the Ethics Act upon your conduct insofar as that conduct constitutes the practice of law. Therefore, insofar as your conduct would constitute the practice of law, Section 3(a) of the Ethics Act likewise cannot be applied to restrict that proposed activity. Particular reference should be made to the decision of the Commonwealth Court at Footnote 7, 434 A.2d at page 1331 -1332. In this note, the Court indicates that any activity in which the attorney purports to render professional services to a client may only be regulated by the Supreme Court. The State Ethics Commission, therefore, must conclude that to the extent that you would represent a client, as a lawyer, before the Chester County Courts, township supervisors or zoning boards or otherwise, Section 3(a) of the Ethics Act would not operate to bar such activity. Section 3(b) of the Ethics Act must be referenced in order D.T. Marrone May 31, 1989 Page 3 to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the propriety of any other statute, code, regulation or ordinance other than the Ethics Act has not been considered. Specifically not addressed in this Advice is the applicability of the County Code or the Rules of Professional Conduct. Conclusion: Section 3(a) of the Ethics Act does not restrict your representation or your activities, as outlined above, insofar as those activities constitute the practice of law. Lastly, the propriety of the proposed conduct has only been addresses under the Ethics Act. 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, Vincent 3''. Dopko, General Counsel