Loading...
HomeMy WebLinkAbout83-630 RosiniAnthony J. Rosini, Esquire Garrigan & Rosini 112 East Independent Street Shamokin, PA 17872 Dear Mr. Rosini: "1" Mailing Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 20, 1983 ADVICE OF COUNSEL RE: Part-Time Assistant District Attorney, Law Practice 83 -630 This responds to your letter of December 7, 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 District Attorney for your law partners or yourself. Facts: You indicate that you currently serve as a part -time Assistant District Attorney. You do not indicate whether you are involved in this capacity in any activities within the District Attorney's office other than representation of that office as a lawyer. Accordingly, we will assume that as a part -time Assistant District Attorney you are not involved in taking or recommending official action within the District Attorney's office with respect to contracting or procurement or administering or monitoring grants as may be set forth in the definition of "public employee" in the Ethics Act at 65 P.S. 402. You also indicate that you are a member of a law parternship and ask whether you or members of your partnership would be barred from representing a plaintiff in a personal injury action when other members of a District Attorney's Staff are prosecuting the defendant for criminal charges arising out of the same matter. Specifically, you ask whether a part -time District Attorney or another member of your law firm may represent an individual injured in a automobile accident when another member of the District Attorney's office is charging the defendant in an action with, for example, driving under the influence or homicide by vehicle where those charges arise out of the accident in which the potential plaintiff was injured. Additionally, you ask whether the answer to this question would be different if the pending charges or potential charges were summary offenses. Finally, you ask whether you, as a part -time District Attorney or your law partners would be barred from representing parties to a divorce action because of the possibility that a member of the District Attorney's staff may be required, some time in the future, to bring an action for non - support against one of the parties involved in the divorce. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Anthony J. Rosini, Esquire December 20, 1983 Page 2 Discussion: The Commission has previously ruled that in 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 or procurement may not even be considered a "public employee" subject to the requirements of the State Ethics Act. See Breslin, 80 -032. There is no reason to distinguish your role as a part -time Assistant District Attorney from that of a position of an Assistant Public Defender. Accordingly, assuming that you are not responsible for taking or recommending official action of a non - ministerial nature with regard to contracting, procurement or grant administration, you would be not considered a "public employee" whose conduct would be subject to regulation by the State Ethics Act. Even if you were to be considered a "public employee" there does nut appear to be any inherent conflict under the Ethics Act in the situations you present so long as your employment as a part -time Assistant District Attorney has not been utilized to secure the clients to be served by yourself or your law partners and so long as no confidential information acquired during your service as a part -time Assistant District Attorney is involved in your or your law firm's representation of these persons. Likewise, we advise that as a "person" even if you are not to be considered a "pulic employee" whose conduct may be regulated as !uch by the Ethics Act, the Ethics Act does in Section 3(b) of the Ethics Act regulate the conduct of any "person" as follows: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee o candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b), It is clear that your conduct as a "person" must conform to tic provisions of the Ethics Act cited above and we mention this only for purposes of attempting to provide a complete response to your inquiry, Finally, the jurisdiction of the Ethics Commission under the Ethics Act is limited to interpreting the Ethics Act itself and applies only to those individuals within its jurisdiction a general matter. As noted above, there is a serious question as to whether or not, under the facts you have Anthony J. Rosini, Esquire December 20, 1983 Page 3 presented, you would be considered a "public employee" and subject to our regulation. Thus, the Commission cannot address in any definitive manner the questions or situations that you pose or address these questions where a county- imposed rule or disciplinary rule of the Supreme Court may be involved or apply to your proposed conduct. This ruling under the Ethics Act should not be construed as "clearance" to act under any law, rule, code, regulation, other than the Ethics Act. Conclusion: A part -time Assistant District Attorney and under the facts as listed or assumed above, you are not a "public employee" subject to the jurisdiction of the Ethics Act. Therefore, there can be no binding ruling by the Ethics Commission on the questions you pose and you should be mindful that this ruling does not address, nor could it address, the propriety of your proposed or actual conduct or that of your law partners under any county rules, codes, regulations, or a disciplinary rules of the Supreme Court which might otherwise be applicable to the situation. 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 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. Ch stianson General Counsel