HomeMy WebLinkAbout83-607 MaynardMr. Peter David Maynard
1121 A Penn Avenue
Wyomissing, PA 19610
Dear Mr. Maynard:
Makrg Address
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
October 27, 1983
ADVICE OF COUNSEL
RE: Assistant Public Defender, Berks County
83 -607
This responds to your letter of September 21, 1983, in which you
requested advice from the State Ethics Commission.
Issue: You ask whether certain situations which might arise constitute a
conflict with your position as an Assistant Public Defender.
Facts: You indicate that you are an Assistant Public Defender employed by
Berks County and paid by Berks County. As such, you are assigned to defense
of indulgence in criminal actions. As an Assistant Public Defender, you are
not involved with or have any responsibility for taking or recommending
official action of a non - ministerial nature with regard to contracting or
grant administration.
In the course of your duties and responsibilities as Assistant Public
Defender, you were assigned to the case of Veronica Ellison involving an
involuntary manslaughter charge. This defendant had also been an employee of
a County facility, and as a result of an incident at that County facility
Veronica Ellison's employment with Berks County was terminated and criminal
charges were filed against her.
You have been requested to represent Ms. Ellison at an unemployment
compensation hearing in which Berks County is the responding employer. You
attended the unemployment compensation hearing and stated on the record that
you are appearing on a pro bono basis because you were currently representing
Ms. Ellison as an Assistant Public Defender in the criminal proceedings.
Berks County has objected to your representation of this former County
employee.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Peter David Maynard
October 27, 1983
Page 2
Discussion: The Commission has previously ruled that an Assistant Public
Defender who is not responsible for taking or recommending official action of
a non - ministerial nature with regard to contracting or grant administration
may not be a "public employee" subject to the requirements of the State Ethics
Act. Breslin, 80 -032. Therefore, it is possible that your conduct is not
even governea by the State Ethics Act because you are not a "public employee"
subject to the Ethics Act.
We have previously ruled, however, that there is no inherent conflict
insofar as a part -time district attorney may represent a former county
employee before an unemployment compensation referee, but this ruling does not
address the factual situation where as here, representation in the criminal
proceeding and the unemployment compensation proceeding is undertaken by the
same Assistant Public Defender for the same person. Compare Bucci, 81-620.
Also, as set forth in that ruling, it is clear that the jurisdiction of the
Ethics Commission is strictly limited to the Ethics Act itself and applies
only to those individuals within its jurisdiction. As noted above, there is a
serious question as to whether or not, under these facts, you would be
considered a "public employee" subject to our regulation. Thus, the
Commission cannot address any questions or situations where county - imposed
rules or disciplinary rules of the Supreme Court may be applied to your
proposed conduct.
Conclusion: As a part -time Assistant Public Defender not involved in taking
or recommending official action of a non - ministerial nature with respect to
contracting or grant administration, you are not a "public employee" subject
to the jurisdiction of the Ethics Act. Therefore, there can be no binding
ruling by the State Ethics Commission on the question you pose. This ruling
does not address, nor could it address, the propriety of your proposed conduct
or actual conduct under any County rules, codes, or the disciplinary rules of
the Supreme Court.
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.
Mr. Peter David Maynard
October 27, 1983
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,
Sandra S. c ristianson
General Counsel