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HomeMy WebLinkAbout83-587 OlivieriMr. Herbert L. Olivieri, Chief Tort Litigation Unit Office of Attorney General 15th Floor Strawberry Square Harrisburg, PA 17120 Re: Representation, Attorney Dear Mr. Olivieri: Meiling Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 September 2, 1983 ADVICE OF COUNSEL State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 83 -587 This responds to your letter of August 22, 1983, in which you requested advice from the State Ethics Commission. Issue: You asked whether Section 3(e) of the Ethics Act applies to you and effects your conduct upon your termination of employment with the Commonwealth. Facts: You are currently employed as Chief of the Tort Litigation Unit in the Office of the Attorney General. As such, you are performing responsibilities as legal counsel in the representation of suits brought against the Commonwealth. You assumed this position in September, 1979, and your duties were to staff the Tort Litigation Unit and establish regional offices in Philadelphia, Harrisburg „and Pittsburgh. You have performed these functions and are currently involved in supervising these offices and conducting the defense of the Commonwealth in actions resulting from the loss of sovereign immunity on behalf the Commonwealth. You are resigning from your position effective September 21, 1983. You may be interested in the project study that has been published by the Pennsylvania Department of Transportation (PennDot) requesting submission of projects from engineering firms. This study involves an examination of the project and policies of PennDot with recommendations to be made for minimizing tort liability. An engineering consultant firm which may be interested in submitting a proposal to PennDot in relation to this project has approached you to be an independent consultant on the project because of your knowledge in the tort litigation field. In regard to this project, you would be acting as a sub - contracter or independent consultant to the engineering firm and a contract would be entered into with the engineering firm who would be paid by PennDot and in turn would pay you under the contract for your services. Mr. Herbert L. Olivieri, Chief September 2, 1983 Page 2 However, your name as the expert in the tort litigation area (transportation and construction, in particular) would appear on the proposal to be submitted to PennDot by the engineering consultant firm. Discussion: Initially, we must recognize that the applicability of Section 3(e) of the Ethics Act, 65 P.S. 403(e) to an attorney in the practice of law has been limited by a recent court decisions. In light of the decision of the Commonwealth Court in Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 62 Pa. Cmwlth. 88, 434 A.2d 1327 (1981), affirmed per curium without opinion, Pa. , 450 A.2d 613 (1982), where the Court held that Section 3(e) of ti Ethics Act was an impermissable intrusion upon the Supreme Court's authority to regulate attorney conduct, the State Ethics Commission has applied this decision to mean that there can be no prohibitions imposed under the Ethics Act upon your conduct insofar as that conduct constitutes the practice of law. Particular reference should be made to the decision in the Commonwealth Court at Footnote 7, 434 A.2d at 1331 -1332. In this note, the Court indicates that any activity in which an attorney purports to render professional services to a client may only be regulated by the Supreme Court. The State Ethics Commission, therefore, must conclude that to the extent that you would be engaging in the practice of law in the relationship with the engineering consultant firm or before any other agency of the Commonwealth, Section 3(e) would not be applicable to nor bar or restrict such activity. If, however, the activities that you intend to undertake following your termination of employment with the Office of the Attorney General, do not fall within the category of the practice of law, Section 3(e) restrictions might apply. Thus, in respect to such activities, the question must be addressed as to which "governmental body" you have been "associated" with during your tenure with the Office ofrthe Attorney General so that the extent of any prohibitions against representation of any person before such "governmental bodies" may be ascertained. At most, you have been "assoicated with the Office of the Attorney General, the Torts Litigation Unit, in particular. You have, during your tenure with the Commonwealth, of course, represented individuals within the Department of Transportation as well as within the other executive, independent and administrative offices of the Commonwealth. However, the fact that you have represented such persons does not indicate that you have been "associated with" those entities as that term or concept is contained in the Ethics Act. Specifically, the Commission has determined that the concept of an individual being "associated with a governmental body extends to that entity or entities with which he or she may have exerted "influence ". In this respect, the fact that you represented certain persons in agencies throughout Mr. Herbert L. Olivieri, Chief September 2, 1983 Page 3 the Commonwealth or persons or departments within PennDot does not necessarily mean you were "associated" with these persons, departments, etc. or preclude you, upon termination of your employment with the Office of the Attorney General, from appearing or representing any person before these departments. Thus, in answer to your specific question, it would not be a violation of Section 3(e) of the Ethics Act if you were to appear and represent any person before PennDot whether or not your conduct should be considered the practice of law. This means that you may allow your name to be included on a bid proposal as the individual who would be involved in a contract or project which might be requested from, acquired from, or submitted to PennDot without violating the Ethics Act. Otherwise, insofar as conduct which you may intend to undertake following your termination of employment which may not constitute the practice of law, you should be advised that you may not "represent" any person except in the practice of law, before the Office of the Attorney General - the governmental body with which you have been associated for a one -year period following the termination of your employment with the Office of the Attorney General. The term "representation" has been interpreted by Opinions of the Commission to include the following activities: 1. Personally appearing before the governmental body with which you were associated including but not limited to negotiations on contracts; 2. Attempting to influence that body; 3. Participating in any manner a specific case, matter or contract, over which you had supervision, direct involvment or responsibility while employed by the governmental body; 4. Lobbying, that is representing the interest of any person before that governmental body as to legislation, regulations, etc. See Morris, 80 -039, Russell, 80 -048; 5. Submitting and signing under your own signature proposals, contracts, or other items to the Office of the Attorney General; 6. Including your name on a bid proposal as an individual who would be involved in administering any contract or to provide technical assistance which is the subject of the proposal. See Dalton, 80 -056, Kilareski, 80 -054. Of course, these restrictions would be applicable even to the Office of the Attorney General (OAG) only insofar as your conduct might not be construed to be the "practice of law" which, as stated above, may not be subject to regulation by Section 3(e) of the Ethics Act. Mr. Herbert L. Olivieri, Chief September 2, 1983 Page 4 While these restrictions may be imposed upon you in relation to the Office of the Attorney General where your activities may not constitute the practice of law, you may, even under these restrictions, engage in the following activities: A. You may administer, rather than negotiate any contract that is to be awarded to any future employer or client so long as that contract is awarded without your name being included as noted in items 5 and 6 above. B. You may make general informational inquiries of the Office of the Attorney General so long as no attempt is made to influence that office. C. You may utilize the knowledge and expertise gained during your tenure as a public employee. D. You may appear and represent any person, company, client, or new employer before any governmental agency other than the OAG or in a third forum such as the State or Federal Courts. Conclusion: As a former public employee, your conduct should be guided by this Advice. The prohibitions and allowable activities are noted above and should be followed. In addition, a former public employee is required to file a Finanical Interest Statement for each year that he holds office and the year following his termination of services. Please be advised of this requirement and comply with same. 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. 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 Acvice. A personal appearance before the Commission will be scheduled and a formal Mr. Herbert L. Olivieri, Chief September 2, 1983 Page 5 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 /na cc: LeRoy S. Zimmerman, Attorney General Office of Attorney General Sincerely, at/ Sandra S. Chr'.tianson General Counsel