HomeMy WebLinkAbout86-507 SacavageState Ethics Commission
308 Finance Building
P. 0. Box 11470
Harrisburg, Pa. 17108 -1470
January 23, 1(
ADVICE OF COUNSEL
Robert R. Sacavage, district Attorney 86 -507
Northumberland County -
'Municipal Ruilding
100 North Vine Street
Mount Carmel, PA 17851
Re: Part -Time District Attorney, Outside Practice of Law
Dear Mr. Sacavage:
This responds to your letter of Decemher 31, 1985, wherein you requested
the advice of the State Ethics Commission.
Issue: Whether any conflict of interest exists if you, a part -time district
attorney, represent private clients in domestic relations matters.
Facts: You are currently serving as the District Attorney of Northumberland
County, Pennsylvania. This is a part -time position as estahlished hy the
Pennsylvania Legislature. You indicate that as a part -time district attorney
you maintain a private practice of law which involves a considerable amount of
domestic relations work. Since the time you were elected to the office of
district attorney you have refrained from representing any clients in actions
for child or spousal support. You have acted in this manner because of your
helief that these matters could he quasi- criminal for which a defendent may he
imprisoned. You indicate that in Northumherland County, however, the Domestic
Relations Office is serviced hy two local attorneys whose position involve
advice and counseling to domestic relations staff that conduct domestic
relations hearings and enforcements of support orders. In your first two
years as a District Attorney, your office has never been requested or obliged
to enforce a support matter. You indicate that the District Attorney's Office
is not involved in the enforcement of support orders to any extent. You now
request the advice from the State Ethics Commission as to whether your may
represent private clients in domestic relations matters as indicated above.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Robert R. Sacavage
January 2.3, 1986
Page 2
niscussion: At the outset, it must be noted that the State Ethics Commission
may not regulate or govern the conduct of attorneys insofar as their conduct
constitutes the practice of law. See Pennsylvania Public Utility Commission
Bar Association v. Thornburgh, 62 Pa. Comm. 88, 434 A.2d 132.7, (1981),
Affirmed, 498 Pa. 589, 458 A.2d 613 (1982). As a result, in reference to your
questions regarding what clients you may represent in your private practice of
law, this Commission would not have jurisdiction to advise you as to the
permissable scope of your activity. This Commission may only address
questions of a public officials activity in their public position and within
the purview of the State Ethics Act. Thus, this Commission could not advise
you that you may or may not represent private clients in domestic relations
matters. The specific question regarding the permissahle scope of your
representation of private clients under these circumstances may be better
addressed by the Pennsylvania Bar Association, Committee on Legal Ethics.
This association may better prepare an answer to your question within the
purview of the Code of Professional Responsibility.
Insofar as your conduct and activities relate to your position as a
district attorney, this Commission would have appropriate jurisdiction to
answer all question in relation to your activity. As a district attorney
you are a puhlic official within the purview of the State Ethics Act. 65 P.S.
'5402. As such, your conduct must conform to the requirements of the State
Ethics Act. Generally, the State Ethics Act places no per se prohibition upon
a puhlic official's outside employment.
The Act does provide as follows:
Section 3. Restricted activities.
(a) No puhlic 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 the ahove provision of law, no public official or employee may use his
position or any confidential information received through that position to
obtain a financial gain for themselves. In this respect, while the Act would
place no prohibition upon your representation of private clients, you may not
use the facilities, personnel or time of your puhlic employer in aid of your
private representation. Additionally, you may not use any confidential
information received in your position as district Attorney to aid your private
clients. See Bucci, 81 -620, Nelson, 85 -009.
In order to provide a complete response to your question, we make note of
Section 3(h) of the Act which provides as follows:
Robert R. Sacavage
January 23, 1986
Page 3
Section 3. Restricted activities.
(b) No person shall offer or give to a public official or
puhlic employee or candidate for public office or a member
of his immediate family or a husiness with which he is
associated, and no public official or public employee or
candidate for public office shall solicit or accept,
anything of value, including a gift, 1 oan, political
contribution, reward, or promise of future employment
based on any understanding that the vote, official action,
or judgment of the public official or public employee or
candidate for public office would he influenced thereby.
65 P.S. 403(h).
We do not, by referencing to this Section indicate that there has or w i l l be
any violation of this Act but merely set forth the above provisions in order
to provide a complete response to your question.
The Ethics Act further provides that the Commission may address other
areas of possible conflicts. 65 P.S. .5403(d). The parameters of the type of
activity encompassed by this particular provision of law is generally governed
and determined by reviewing the general scope and i ntent of the State Ethics
Act. The Act was promulgated in order to strengthen the faith of the public
in their public officials. 65 P.S. b401. Thus, the Act provides that the
conduct of public officials should neither conflict nor appear to conflict
with the public trust. Such a conflict would develop in a situation where you
are called upon to serve on or more interests that are adverse. See Alfano,
80 -007. Such a conflict could develop if, for example, you or your office were
called upon in an official capacity to act upon a matter which involved a
private client. In such a situation, you must completely abstain from
participating in said matter. See Smith, 85 -605, Mohan, 85 -587. The fact
that you have abstained in this type of a matter s17671 d he publicly disclosed
and should he recorded in appropriate files. Additionally, the reasons for
such ahstention should also he noted. While this advice can only address the
issue that is presented herein, in a general manner, you are invited at any
future time to raise specific questions in the event that such questions
should arise.
Conclusion: The State Ethics Act places no per se prohihition upon a
part -time district attorney engaging in outside practice of law. The Ethics
Commission does not have jurisdiction to render an opinion as to the propriety
of your permissable scope of that outside practice of law. The Commission may
address questions regarding the public official's activities as a public
official. As an elected district attorney you are a public official within
the purview of the State Ethics Act and your activities, as such, must be in
confomance with the Act as outlined in the foregoing advice.
Rohert R. Sacavage
January 2.3, 1986
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 crimi nal 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.
Sinn rely,
ohn J. entino
General - Counsel