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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