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HomeMy WebLinkAbout83-516 Clanceys Mr. Michael T. Clancey c/o Thomas J. Clancey 644 Gold Avenue Erie, PA 16509 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 March 1, 1983 ADVICE OF COUNSEL RE: Former Department of Revenue Counsel, Section 3(e) Dear Mr. Clancey: 83 -516 State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania This responds to your letter of December 10, 1982, at which time you requested advice from the State Ethics Commission. Issue: You request advice as to whether you, as a prior law clerk and assistant counsel for the Legal Bureau of the Department of Revenue (Revenue), may enter into employment as a staff attorney for G. C. Murphy Company (Murphy) without involving a conflict or the appearance of a conflict of interest under the State Ethics Act. Facts: You were employed by the Legal Bureau of the Department of Revenue since June, 1979. Until August, 1981, you worked part -time and summers as a law clerk while attending the Dickinson School of Law. From August, 1981 until December, 1982, you worked full -time as an assistant counsel. You resigned at the end of December, 1982, to accept employment with the G. C. Murphy Company, to begin in January, 1983. While employed by Revenue, your primary responsibilities were in handling legal matters pertaining to the Pennsylvania Personal Income Tax and the Realty Transfer Tax. You have occasionally been assigned projects in other tax areas, such as Sales Tax, Public Utility Realty Tax and various corporate taxes. Your specific duties as an assistant counsel included preparation of internal advice memoranda, providing oral guidance to taxpayers and Revenue personnel, preparation of "private letter" rulings, preparation of chief counsel memoranda for publication, writing regulations, review and re- writing of tax instruction booklets, reviewing and counter - briefing cases of the Board of Finance and Revenue, attending settlement conferences for cases being litigated by the Attorney General's Office, and other miscellaneous duties. Mr. Michael T. Clancey c/o Thomas J. Clancey March 1, 1983 Page 2 Your new position with Murphy is as a staff attorney in the legal department. You are responsible for legal representation of the corporation in such areas as real estate law, securities law, anti -trust law, Uniform Commercial Code law and other areas of commercial or business law. The legal department does not handle any federal or state tax matters at this time, but it is possible that these matters will arise in the future. While you were employed by Revenue, your contacts with Murphy`-were unofficial in nature, limited to two employment interviews and related telephone conversations. You have never been involved in any matter concerning Murphy in your official capacity as a Revenue law clerksor assistant counsel. Discussion: Initially, the Ethics Commission notes that, as a stautory entity, its jurisdiction and its power is strictly limited to the authority granted it in 65 P.S. §401 et seq. Thus, it has no authority to interpret and /or enforce the provisions of other codes such as the Canons of Ethics and does not address the effect of those Canons on your conduct. On September 28, 1981, the Commonwealth Court of Pennsylvania granted summary judgement in the case of P.U.C. Bar Association v. Thornburgh, Pa. Cmwltha , 434 A.2d 1327, which was affirmed on June 17, 1982, by the , Pennsylvania Supreme Court at Pa. . In that case, the Court found Section 3(e) of the Ethics Act unconstitutional as applied to attorneys. Section 3(e) of the Act provides: No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. In light of the Court's decision, Section 3(e) no longer applies to you as an attorney. So long as you represent G. C. Murphy in your capacity as an attorney, the Ethics Commission does not have the power to regulate your conduct. You are thus relegated to the Code of Professional Responsibility as adopted by the Supreme Court of Pennsylvania, specifically Canon 5. Conclusion: In light of recent Pennsylvania Court decisions, your conduct as an attorney for G.C. Murphy is not regulable under Section 3(e) of the Ethics Act. Mr. Michael T. Clancey c/o Thomas J. Clancey March 1, 1983 Page 3 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. Thi 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 atformal 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. CW /rdp CC: 0b-t -1 - 2jtocrn Sincerely, r4 Sandra S. Chri tianson General Couns.-1