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HomeMy WebLinkAbout87-635 WeissDear Mr. Weiss: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 December 1, 1987 ADVICE OF COUNSEL Ira Weiss, Esquire 87 -635 514 Grant Building Pittsburgh, PA 15219 Re: Conflict of Interest, County Solicitor, Office rental from firm which has matters before County This responds to your letter of November 5, 1987, in which you requested advice from the State Ethics Comission. Issue: You ask whether a Deputy County Solicitor may enter into a sub -lease agreement for the rental of office space from a law firm which represents clients in legal matters with the County. Facts: You state that you are employed as a full -time Deputy County Solicitor with Allegheny County but you are permitted to engage in the private practice of law. You further state that you maintain an outside legal practice and contemplate entering into a sub -lease agreement with the firm of Thorp, Reed and Armstrong, One Riverfront Center, Pittsburgh, Pennsylvania for office space rental for your private practice. You state that you will have no affiliation with the firm and will not share any fees or co- mingle work. You note that the firm does represent clients who have legal matters or are involved in litigation with Allegheny County. It is then stated by you that you will have no involvement in those matters nor with any of other matters with the firm. You conclude by requesting an opinion as to whether the proposed arrangement would transgress the Ethics Act. Discussion: As a Deputy County Solicitor, you are a "public employee" as that term is defined in the Ethics Act. See Thau, 84 -020 -A and Maunus, 84- 020 -B. Accordingly, you are subject to the Ethics Act and the restrictions therein are applicable to you. Section 3(a) of the Ethics Act provides: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received Ira Weiss, Esquire December 1, 1987 Page 2 through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself which is not provided for in law constitutes a "fianancial gain other than compensation provided by law." See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. (1987) filed on September 18, 1987 at 834 C.D. 1986. Of course, under this provision, you may not use your public position to secure any financial gain for yourself in your private practice of law. However, Section 3(a) would not prohibit you as a Deputy County Solicitor from renting office space from a firm which represents clients in legal matters before the County, provided you have no affiliation with that firm. As outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if you were to rent office space form the firm to carry on your own private practice. It is further provided in Section 3(b) of the Ethics Act: Section 3. Restricted activities. (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 or 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). Specifically, the Ethics Act provides that no public official may use his public office or confidential information received through his holding public office to obtain financial gain for himself or a business with which he is associated and no public official may receive anything of value, including the promise of future employment, on the understanding that his official conduct will be influenced thereby. See Section 3(a) and (b) of the Ethics Act, 65 Ira Weiss, Esquire December 1, 1987 Page 3 P.S. 403(a) and (b). It is assumed that such a situation does not exist here. Reference is made not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Reference must also be made to Section 3(d) of the Ethics Act which allows the Commission to review other areas of conflicts of interests. Generally, the types of activities encompassed by this particular provision are generally determined through a review of the intent of the State Ethics Act. Generally, the State Ethics Act was promulgated in order to ensure the public that the interests of their officials do not conflict with the public trust or create the appearance of a conflict of interest. Under Section 3(d), you as Deputy County Solicitor, may not participate nor be involved in any matter in which the County is involved with the firm. Further, you must note your abstention and the reason for your abstention. Lastly, the Ethics Commission has only addressed your question relative to the Ethics Act; it has not considered the applicability of any other statute, code, ordinance, regulation or any other code of conduct other than the Ethics Act. Specifically, the Commission has not addressed the question of whether the above activity is permissable under the County Code. Conclusion: As a Deputy County Solicitor, you are a public employee subject to the provisions of the State Ethics Act. Under the facts and circumstances outlined above, the Ethics Act would not prohibit you from renting office space from the firm with which you have no affiliation. You may not participate in any matter that the County has with the firm and you should note your abstention in those matters and the reason for your abstention. Lastly, the Ethics Commission has only addressed your question under the Ethics Act but has not considered the applicability of any other statute, code, ordinance, regulation or other code of conduct or the County Code. 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. Ira Weiss, Esquire December 1, 1987 Page 4 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. VJD /na Sincerely, Vincent J. Dopko, General Counsel