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HomeMy WebLinkAbout82-581 JoyceWilliam J. Joyce, Esquire Cusick, Madden, Joyce & McKay First Federal Building P.O. Box 412 Sharon, PA 16146 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 November 8, 1982 ADVICE OF COUNSEL State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 82 -581 RE: Solicitor, Industrial Development Authority, Application for Funds Dear Mr. Cusick: This responds to your letter of October 15, 1982, in which you requested advice from the State Ethics Commission. Issue: You ask whether it is proper for your firm to participate in an appli- cation for funds from a County Industrial Development Authority. Facts: You are a member of firm Cusick, Madden, Joyce & McKay, a partnership engaged in the practice of law, hereinafter Cusick. Cusick has been appointed as one of the four firms serving as solicitors for the local County Industrial Development Authority, hereinafter the Authority. Cusick is considering submitting an application to the Authority for approval by it of a project involving the construction of a building which Cusick would use as a law office. If the application is approved by the Authority and by the Department of Commerce of the Commonwealth, Cusick would borrow the amount of the construction cost from a local bank with the Authority as an obligor on a note issued to the bank in the amount of the loan. There would be a lease agree- ment between the Authority and Cusick that would obligate Cusick to pay off the loan in accordance with the terms of the note. Cusick would, in addition, furnish the bank a written gaurantee by which it would gauranty the payment of the note of the Authority. The Authority is represented, as mentioned before, by four solicitors, including Cusick. It has been the practice of the Authority to assign the legal work for each project to one of the four firms designated as solicitors. The firm would then bill the developer directly for its services and receive payment for such services directly from the developer. If the proposed application by Cusick is approved, Cusick would not serve as solicitor for the Authority on that project and they would not participate in any of the fees for legal services rendered in connection with financing of the project. William J. Joyce, Esquire November 8, 1982 Page 2 Discussion: It has generally been held that part -time municipal solicitors are not to be considered "public employees" or "public officials" within the meaning of those definitions as set forth in the Ethics Act. See Ballou v. State Ethics Commission, 436 A.2d 186 (1981). Therefore, solicitors such as your firm are not to be considered within the scope of the Ethics Act as the Act regulates the conduct of "public employees" or "public officials." Hence, as the Court indicated, such solicitors are not statutorily held to comply with those provisions of the Ethics Act which might otherwise be applicable to the class of persons identified as "public employees" or "public officials." As a result, provisions of Section 3 of the Ethics Act which regulate the conduct of "public employees" or "public officials" would be inapplicable to your firm. Consequently, in particular, those requirements of Section 3(c) of the Ethics Act, which provide that an open and public process must be apparent prior to any award of a contract between a public official or public employee and the governmental body which he serves would not be required to be met in your case. One caution is still apparent and applicable. Specifically, Section 3(b) of the Ethics Act requires that no person may give or accept any thing of value on the understanding that an official's conduct would be influenced thereby. This section continues to apply to any "person" and I mentioned this not to imply an impropriety in relation to your proposed transaction, but merely to note its continuing applicability. Conclusion: Provisions of Section 3 of the Ethics Act as they regulate the conduct of the class of persons identified as "public employees" or "public officials" are inapplicable to your law firm as solicitor for this Authority. As such, the firm may participate in this transaction without any application of or violation of the provisions of Section 3(c) of the Ethics Act in parti- cular, although I note the continuing application of some portions of the Ethics Act, as described above. 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. William J. Joyce, Esquire November 8, 1982 Page 3 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. SSC /rdp Sincerely, andra S. Ti ianson General Couns-1