HomeMy WebLinkAbout82-588 MagnelliFrank R. Magnelli, Esquire
221 South 31st Street
Harrisburg, PA 17109
Meiling Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
November 26, 1982
ADVICE OF COUNSEL
82 -588
Re: Part -time practice of law, representation before administrative
agencies.
Dear Mr. Magnelli:
This responds to your letter of October 12, 1982, in which you requested
Advice from the State Ethics Commission.
Issue: You question whether the Ethics Act places any limitations on a
part -time practice of law.
Facts: You are currently employed as an Administrative Officer in the Legal
Bureau of the Department of Revenue and have held this position since February
of 1982. Your position is not classified as an "attorney" position within the
Department although you have a law degree. While with the Department of
Revenue you served as an Administrative Officer in the Bureau of Enforcement,
Cigarette and Liquid Fuels Division, from October, 1977 until February, 1982.
Prior to that you served as an Enforcement Officer with the Liquor Control
Board.
Your present duties as you described them place no responsibility on you
for taking or recommending official action of a non - ministerial nature as set
forth in the definition of "public employee" within the Ethics Act. See 65
P.S. 402.
It is your intention, if no prohibitions or conflicts exist, to open a
private law office and to practice law on a part -time basis. This practice
would involve only time outside of your regular office working hours and would
be general in nature. This practice, however, could include representing
individuals before various administrative agencies and boards, such as the
Liquor Control Board, Civil Service Commission and the Labor Relations Board.
You do not indicate you will represent clients before Boards, Commissions,
etc. within the Department of Revenue and for purposes of this response we
assume you will not do so.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Frank R. Magnelli, Esquire
November 26, 1982
Page 2
Assuming, without deciding, that you are a "ra1 i c employee" covered by
the Ethics Act we have previously held that undertaking employment in addition
to the job you hold with the Commonwealth does not per se, represent a
conflict of interest. Only in those instances where the '∎nterest that you
serve as a public employee and the interest you would serve in your private
position would be adverse to each other would there be any prohibition under
the Ethics Act. Alfano, 80 -007. Thus, the fact that you would engage in the
part -time practice of law would not be in and of itself prohibited or
restricted by the Ethics Act. However, should the interest that you would be
serving as a private practitioner conflict with the interest of your employer,
the Department of Revenue, you could not practically or legally continue to
represent or serve froth interests without implicating or appearing to violate
the public trust. The Ethics Act requires that your financial interests must
not even appear to conflict with the public trust. See Section 1 of the
Ethics Act, 65 P.S. 401. However, in most instances where you would be
representing individuals before administrative agencies, the Department of
Revenue's interest would not be directly or adversely affected.
This conclusion is based on the specific facts that you present and rely
heavily on the fact that you serve only as an Administrative Officer with the
Department of Revenue. This is not intended and should not be construed to
indicate in all instances and in respect to all persons that representation of
private parties before any administrative agency is cons :scent with the
requirements of the Ethics Act.
Conclusion: tinder the circumstances presented and assuming that you are a
"public employee" for purposes of this discussion, we do not see any per se
prohibition against your engaging in the private practice of law as you
propose. This conclusion does not address any other possible prohibitions
which may be applied to you as a Commonwealth employee under any other statute
or executive or departmental code of ethics. Questions relating to these
items should be addressed to the appropriate bodies or personnel.
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.
This letter is a public record and will be made available as such.
Frank R. Magnelli, Esquire
November 26, 1982
Page 3
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
cc: Robert Bloom, Secretary
Department of Revenue
Sincerely,
ndra S. Chris anson
General Counse