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HomeMy WebLinkAbout84-614 BinnsJames J. Binns, P.A. Attorney At Law 300 Walnut Street Philadelphia, PA 19106 Dear Mr. Binns: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 September 27, 1984 ADVICE OF COUNSEL Re: Legal Representation, State Athletic Commission This responds to your letter of September 4, 1984, advice from the State Ethics Commission. Issue: You ask whether your representation as a lawyer or groups poses any conflict under the State Ethics Act serve as a "public official" in the Commonwealth. 84 -614 in which you requested of certain individuals insofar as you also Facts: On November 10, 1983, the Ethics Commission entered Order No. 253 stating that your professsional activities which were the subject of the inquiry and which gave rise to that Order did not violate the State Ethics Act. However, because you recognize that the activities not specifically mentioned in that Order which you may undertake are not "covered" by the conclusions reached in that Order, you have asked us to review several other questions, activities, and factual circumstances. In your request you indicate that the facts, as set forth in the Commission's Order No. 253, continue to be valid to this date. However, we will restate some of the pertinent facts and, for purposes of this response, assume that these are relevant and operative. Those facts indicated that you serve as a Commissioner for the Pennsylvania State Athletic Commission (SAC) and that as Commissioner you are compensated for this service. Therefore, you are a "public official" as defined in the State Ethics Act and you are subject to the jurisdiction of the State Ethics Commission and State Ethics Act. The SAC is responsible for administering and enforcing the State Athletic Code. James J. Binns, P.A. September 24, 1984 Page 2 In addition to being a member of the Commission of SAC, you are a member of both United States Boxing Association (USBA) and the World Boxing Association (WBA). Both of these organizations have as their purpose the encouragement and support of the sport of boxing, a goal of obtaining professionalism in the sport, and a goal of achieving efficiency and uniformity in supervising and controlling boxing events. The USBA is composed, among other entities, of Commissions boxing in the various states, including SAC which is a member of the USBA as well as of WBA. While neither USBA nor WBA is directly regulated by SAC, bouts sponsored by either would be subject to the provisions of the State Athletic Code and the SAC rules. In the request which you present, you asked us to review the following factual circumstances: 1. You act as legal counsel for the WBA although the services you render to the WBA do not involve the Commonwealth of Pennsylvania. Additionally, you do not represent the WBA before the SAC although you are paid for legal services you render to the WBA. 2. You represent organizations involved in the promotion of boxing events but this representation does not involve the Commonwealth of Pennsylvania or representation of organizations before the SAC. Again, you are paid for legal services you render in connection with these activities. 3. You represent individuals engaged in the business of managing fighters. The services which you render to these individuals does not involve the Commonwealth of Pennsylvania nor do you represent these persons before the SAC although you are paid for the legal services you render in connection with these activities. 4. Finally, you indicate that you represent fighters who are licensed in the Commonwealth of Pennsylvania. Your representation of these fighters involves matters both in and out of the Commonwealth of Pennsylvania, but in no instance does it involve the State Athletic Commission in any manner whatsoever. Discussion: As stated in the factual portion of this response, you are to be considered a "public official" subject to the provisisons of the State Ethics Act because of your membership on the SAC. Thus, the questions which you present in regard to Items No. 1 - 4 above basically revolve around the determination of whether the representation in each of these circumstances is inherently incompatible with your service to the SAC and /or prohibited by any provision of the Ethics Act. James J. Binns, P.A. September 24, 1984 Page 3 The Ethics Act itself does not contain a provision which defines such representation of individuals and service on the SAC as being prohibited per se. The Opinions of the Ethics Commission and the provisions of the Ethics Act however, states that a public official may not use his public position to secure financial gain for himself or a business with which he is associated. Thus, you could not, of course, use your position with the SAC or confidential information obtained through your service on the SAC to secure for yourself, the legal representation work or retainers associated with the representation of persons or groups set forth in Items No. 1 - 4 above. Further, the Opinions of the Ethics Commission under the Ethics Act indicate that a conflict of interest would arise if and when an individual were serving two entities whose interests were adverse to each other. See Alfano, 80 -007. Under the facts as you have outlined them above, especially where your representation of the WBA, organizations promoting boxing events, individuals engaged in the business of managing fighters or representation of fighters themselves does not involve representation before the Commonwealth of Pennsylvania or the SAC, there is little likelihood that the interests which you would be representing as legal counsel, would be adverse to those interests which you are bound to serve as a Commissioner for the SAC. Thus, there is no provision of the Ethics Act or opinion of the Ethics Commission which would indicate that your activities in the representation of persons or groups outlined in Numbers 1 - 4 above and your service on the SAC would be inherently incompatible or prohibited as a conflict of interest. However, you are cautioned that should an occasion arise where your representation of any of these individuals or groups would be subject to review or jurisdiction of the State Athletic Commission, you should, as a Commissioner of the SAC, decline to participate in any SAC decisions which might affect the persons or groups which you represent as outlined above. Finally, it should be noted that the jurisdiction that the State Ethics Commission is strictly limited to rendering opinions and reviewing questions under the State Ethics Act. Thus, this ruling should not be taken to be "clearance" to act under any other statute, regulation, code of responsibility, etc. other than the State Ethics Act. Conclusion: There is no provision of the State Ethics Act or Opinion of the State Ethics Commission which would declare that the above referenced representation would, while you continue to serve as a member of the SAC, be prohibited, per se, or that these activities are inherently incompatible or represent a conflict of interest. The cautions outlined above, should your activity as legal representative and your reponsibility as Commissioner on the SAC in any instance overlap, must be observed. James J. Binns, P.A. September 24, 1984 Page 4 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 full 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. Sincerely, andra S. Chri ianson General Couns 1