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HomeMy WebLinkAbout80-538 PapeTO: FACTS: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 February 27, 1980 ADVICE OF CHIEF COUNSEL Kathy L. Pape, Esquire General Waterworks Management & Service Company 1500 Walnut Street Philadelphia, PA 19102 RE: Former PUC Attorney Representing Utility Advice # 538 On February 14, 1980 Kathy L. Pape, Esquire, Council for the General Water Works Management & Service Company, wrote this Commission asking for an advice of chief counsel. She advised she was employed by the Pennsylvania Public Utility Commission as an attorney until December 18, 1979. She asked for guidance as to the definition of the term "represent" she asked the following: 1. Preparation of a brief which is to be filed with the Public Utility Commission? 2. Background legal research for a brief which will be filed by another attorney before the Public Utility Commission? 3. Responding to interrogatories to be filed with the Public Utility Commission? 4. Argument before Commonwealth of a case for which I was not responsible while employed by the Public Utility Commission and in which the Public Utility Commission is named as Respondent? 5. Preparation of a brief for a case for which I was not responsible while employed by the Public Utility Commission and is named as Respondent? Kathy L. Pape, Esquire February 27, 1980 Page 2 DISCUSSION: The threshold issue is whether an attorney with the Public Utility Commission is considered "public employee" as defined by the State Ethics Act. The next question goes to defining the term "represent," as it is used in the State Ethics Act. It is the opinion of the Commission that staff attorneys of the Public Utility Commission are public employees because all of them make recommendations of a nonministerial nature involving "regulating... any person," and make recommendations which have "an economic impact of a greater than a de minimus nature on the interests of any person." Section 3(e) of the State Ethics Act states "No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body." The purpose of the State Ethics Act is not to bar the use of intellectual expertise gained in the service of the public but rather the use of personal influence with former associates. Accordingly, preparation of briefs, background legal research, preparation of briefs in which the Public Utility Commission is respondent are not barred by Section 3(e) of the State Ethics Act. Negotiation of rates, discussions effecting any matter before the Public Utility Commission with any attorney associated with the Public Utility Commission, and argument before the Public Utility Commission or any administrative law judge associated with the Public Utility Commission is barred by Section 3(e) of the State Ethics Act. Section 3(e) does not bar informational inquiries, such as request for new regulations to be sent or copies of opinions. Adler, 79 -43, Berger /Beaser, 79 -60. Kathy L. Pape, Esquire February 27, 1980 Page 3 CONCLUSION: DRM /rdp -2 A former attorney with the Public Utility Commission may not use his or her personal influence with any employee or official of the Pulic Utility Commission effecting any matter before that Commission, but may use their intellectual expertise in assisting attorneys in preparation of briefs, background leagal research, preparation of interrogatories, and the preparation of briefs where the PUC is named as respondent. A former PUC attorney may not negotiate any matter with any employee or official of the Public utility Commission for a period of one year after they leave that body. Section 3(e) does not bar a former attorney from making informational inquiries as to regulations, opinions or other publications of this Public Utility Commission. 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 disclsoed truthfully all the material facts and committed the acts complained of in reliance on the advice given. A personal appearance before the Commission and a formal opinion will be issued upon your request if you feel this reply does not suffice. This letter is a public record and will be made available as such. DAVID RITTENHOUSE MORRISON Chief Counsel