HomeMy WebLinkAbout81-639 WilliamsonJ. Michael Williamson, Esquire
226 East Water Street
Lock Haven, PA 17745
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
November 10, 1981
ADVICE OF COUNSEL
RE: Section 3, County Commissioner
Dear Mr. Williamson:
This responds to your letter of July 24, 1981, in
which you requested an opinion from the Ethics Commission.
Issue:- You requested advice as to whether you would have
a conflict of interest if you were elected as a County
Commissioner in the following situations:
(1) your law office represents a county social
service under an agreement modifiable by the
Commissioners;
(2) you acted as solicitor to the County Prothono-
tary;
(3) your law firm represented criminal defendants
and was paid upon submission to the County
Commissioners of court - approved bills;
(4) your law firm acted as Guardian Ad Litem paid by
the Commissioners;
(5) your law firm acted as arbitrators, fees are
paid by the County;
(6) a municipality represented by your law firm
approaches the County Commissioners for
assistance;
(7) you as a Commissioner deal with the Presidential
Judge in funding the court system;
(8) your law firm appears before the District
Magistrates over whom the Commissioners have
financial leverage.
Facts: You informed us that you wish to seek office as
a Clinton County Commissioner. You are a partner in
a law firm in Clinton County; the firm actively practices
State Ethics Commission C 308 Finance Building • Harrisburg, Pennsylvania
81 -639
J. Michael Williamson, Esq,
November 10, 1981
Page 2
municipal law. The firm represents the Clinton County
Children and Youth Social Service Agency. The Commis-
sioners can modify the agreement between the firm and the
Agency. You are solicitor to the Prothonotary of the
County. Your firm represents criminal defendants, acts
as Guardian Ad Litem and as arbitrators. All of these
services are paid for by the County. The firm also re-
presents municipalities that may contact the County for
assistance. Finally, the Commissioners approve funding
for the Court of Common Pleas and the District Magis-
trates. Your firm practices before the Courts and the
Magistrates.
Discussion: The Ethics Act, 65 P.S. Section 401 et seq.,
defines public official as any elected official in the
Executive, Legislative or Judicial Branch of the State
or any political subdivision thereof. 65 P.S. Section
402. As an elected County Commissioner you would be a
public official subject to the Ethics Act. The Act does
not forbid public officials from engaging in other business
so long as the restrictions imposed by the Act are
observed.
Answering your questions in the order you posed
them, we note first that your firm may if you were elected
continue to represent the Clinton County Children and
Youth Services Agency hereinafter, the Agency. The Ethics
Act forbids using public office or confidential information
received through public office to obtain financial gain
for yourself or a business with which you are associated.
65 P.S. Section 403(a). You could not use a position as
a Commissioner or confidential information received as a
Commissioner to benefit you or your firm.
No one could offer you anything of value based on
any understanding that your actions as County Commissioner
would be influenced thereby. 65 P.S. Section 403(b).
"Anything of value" includes an offer of future employ-
ment. Generally, your official actions could not be influenced
by an offer to retain your firm as counsel to the Agency.
The State Ethics Commission has also interpreted
the requirements of Section 1 of the Ethics Act relating
to Section 3(c) which states that no business in which a
public official is a director, officer or owner of more
than 5% of the equity at fair market value of the business
J. Michael Williamson, Esq.
November 10, 1981
Page 3
may contract with a governmental body unless the contract
valued at more that $500 is awarded in an open and public
process. See Routch, 80 -019 and 65 P.S. Section 403(c).
Thus, if your law firm's agreement with the Agency is
valued at more than $500, to be consistent with Routch
the contract must be awarded in a process including:
(1) Prior public notice; and
(2) public disclosure of all proposals considered; and
(3) public disclosure of the award of the contract,
Howard, 79 -044.
If a question concerning your firm's agreement with
the Agency should come before the Commissioners, you
must abstain from discussions and voting on same and place
the reason for your abstention on the public record. Sowers,
80 -050.
(2) There is no inherent conflict of interest in
you retaining a post as Solicitor to the Prothonotary of
Clinton County if you become a County Commissioner. The
Prothonotary must be considered part of the county govern-
ment, the governmental body with which you will be associ-
ated. If your position as Solicitor to the Prothonotary
is worth more than $500 it must be awarded in an open
and public process as detailed above in (1). Even if
your contract is not valued at more than $500 you cannot
vote if a question involving your representation or compen-
sation comes before the County Commissioners. The reason
for your abstention should be placed upon the public record.
Sowers, 80 -050.
(3) Your law firm may continue to represent criminal
defendants even if you become a County Commissioner. The
fees obtained by such representation are approved by the Court
and payment to the firm appears to be a simple ministerial
act by the Commissioners. In an analogous situation
the Ethics Commission decided that public officials could
vote on payment of routine bills to their private employer.
See Stewart, 79 -070. You could vote on such payments
if and only if the payments are approved by the Court
and are not subject to dispute.
(4) & (5) These two questions present a single
issue, whether your firm may receive funds from the County
for legal services. It does not appear from your communi-
cation that these payments are approved by any governmental
J. Michael Williamson, Esq.
November 10, 1981
Page 4
body other than. the Commission. This factual difference
compels a slightly modified answer from that given in
(3) above. Your firm may act as arbitrators and Guardians
Ad Litem, but you may not vote on their compensation or
on questions involving their appointment. This is a
non - ministerial act; voting payments to your firm
within your discretion is a prohibited conflict of interest.
The reason for abstention must be placed upon the public
record.
(6) It is not a violation of the Act for your firm
to represent municipalities that appear before the Clinton
County Commissioners, so long as your connection with the
firm does not influence your official actions. To avoid
the appearance of this occurring you should abstain from
participating or voting on issues where your firm is
counsel.
(7) & (8) The last two questions involve the pro -
priety_of you and your firm practicing before the Court
of Common Pleas and the District Magistrates when you,
as a County Commissioner decide questions of funding
for both parts of the judicial system. Again, there is
no inherent conflict; you do not represent two or more
persons with interests adverse to one another, Alfano,
80 -007, in that situation. If you were to use your power
over the judicial budget to influence the official acts
of a judge or magistrate, there would be a violation of
Section 3(b) of the Ethics Act.
Conclusion: As a County Commissioner you would be
subject to the Ethics Act. Should you become a Commissioner:
(1) Your law firm could continue representation
of a County Agency. You could not use the Commissioner's
office or confidential information received as a Commis-
sioner to obtain financial gain for you or the firm.
No one could offer you anything of value, including a
position as agency counsel based on any understanding
that your official acts as Commissioner would be affected
thereby. If the contract between your firm and the
Agency is valued at more than $500, it must be let in an
open and public process allowing for:
J. Michael Williamson, Esq.
November 10, 1981
Page 5
(a) prior public notice; and
(b) public disclosure of all proposals considered; and
(c) public disclosure of the award of the contract.
You should abstain from voting on the employment of your
firm or its compensation and place the reason for ab-
staining on the public record.
(2) You may serve as solicitor to the County Pro-
thonotary. If the position is worth more than $500 it
must be awarded in an open and public process as detailed
in (1)'above.
(3) Your law firm may represent indigent criminal
defendants even if you become a Commissioner. Because
compensation for such representation is approved by the
Court, the Commissioner's vote appears to be ministerial
only. Thus, you may vote on any routine, undisputed
payment to your firm.
(4) & (5) Your firm may receive County funds for
serving as Guardian Ad Litem and as arbitrators. These
payments are not ministerial; you may not vote on dis-
cretionary payments to your firm. The reason for absten-
tion must be placed on the public record.
(6) If your connection to a law firm does not in-
fluence your official acts your firm may represent muni-
cipalities before the County Commissioners. The appear-
ance of a conflict of interest would be avoided if you
abstained from taking official action in which your firm
acted as counsel.
(7) & (8) You and your firm may practice before the
Common Pleas and District Magistrates of the County
although you as a County Commissioner will have some
influence over the budget of the local judiciary. You
cannot use this power to influence the official acts
of judges or magistrates.
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
J. Michael Williamson, Esq.
Page 6
November 10,1981
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 may be scheduled and a formal Opinion from the
Commission will be issued. You should make such a request
or indicate your disapproval of this Advice within the next
30 days.
SSC /lma
0138
Sincerely,
/
dra S. stianson
General Cou ►sel