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HomeMy WebLinkAbout87-644 MinyardHandsel B. Minyard, Esquire Municipal Services Building Room 1520 Philadelphia, PA 19102 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 December 21, 1987 ADVICE OF COUNSEL Re: Attorney, City Solicitor, Representation, Sec. 3(e), Dear Mr. Minyard: 87 -644 This responds to your letter of November 17, 1987, in which you requested advice from the State Ethics Commission. Issue: You have requested advice regarding the permissible scope of your practice of law upon termination of your employment with the City of Philadelphia. Facts: In your advice request, you state that you are the City Solicitor of the City of Philadelphia and also the ex officio member of certain boards and commissions, one of which is the Board of Pensions and Retirement, hereinafter Board. You state that the Board is an independent City agency responsible for administering the pension and retirement system of Philadelphia. In this regard, you state that although a deputy generally serves as your representative on the Board, you do attend Board meetings which deal with investments from the pension fund. You also state that, in 1986, the Board determined to invest in realty and real estate - backed investments and pursuant to that decision engaged MIG Realty, hereinafter MIG, as a consultant to assist in making those investments. You further state MIG was specifically engaged both to evaluate real estate investments which would be presented to the Board and also to seek investments for the Board's consideration. You state that although you did not participate in the Board's decision to engage MIG, which receives a fee for services, you did participate in the contract negotiations with MIG in your capacity as City Solicitor once the decision had been made to retain MIG. You then state that you will be leaving your position as solicitor at the end of the calendar year and that MIG has Handsel B. Minyard, Esquire December 21, 1987 Page 2 approached you regarding the possibility of working with them by performing certain legal work and interacting with the Board. You state that your activity would consist of attending meetings with the Board and Board members so as to apprise them of the work being done by MIG for the Board and advise them of the progress being made on MIG projects on behalf of the Board. Following the citation of the Ballou, Snelbaker and PUC v. Thornburgh cases, you request advice of this Commission both as to your status as a lawyer under the Ethics Act and the possible restrictions the Ethics Act would impose upon you for performing the services as outlined above. You are aware of Pennsylvania Public Utility Bar Association v. Thornburgh, 434 A.2d 1327, 62 Pa. Cmwlth. 88 (1981), affirmed per curiam 450 A.2d 613, 498 Pa. 589 (1982) which deals with the applicability of Section 3(e) of the Ethics Act to attorneys in the regulation of their practice of law. However, you seek clarification of the question of the applicability of the Ethics Act to your situation and any restrictions that might be placed upon your conduct with respect to your practice of law and new work and /or employment. Discussion: In light of the recent decision in Pennsylvania Public Utility Commission Bar Association, supra, where the Court held that Section 3(e) of the Ethics Act, 65 P.S. 403(e), was an impermissible intrusion upon the Supreme Court's authority to regulate an attorney's conduct, the State Ethics Commission has applied this decision to mean that there are no prohibitions under Section 3(e) of the Ethics Act upon your conduct insofar as that conduct constitutes the practice of law. Under the Ballou, Snelbaker Cases, it was decided that solicitors who were not full -time employees but who served in a capacity akin to a consultant were not "public employees" or "public officials" under the Ethics Act. However, this Commission has determined that attorneys who are full -time public employees are subject to the Ethics Act, Maunus /Thau, 84 -020B, 84 -020A, subject of course to the limitation imposed by the Court in PUC v. Thornburgh, supra. Therefore, insofar as your conduct before the City of Philadelphia, the Board or any other board or commission on which you serve, the agencies or entities with which you were associated, would constitute the practice of law, Section 3(e) of the Ethics Act cannot be applied to restrict that proposed activity. Particular reference should be made to the decision of the Commonwealth Court at Footnote 7, 434 A.2d at page 1331 - 1332. In this note, the Court indicates that any activity in which the attorney proports 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 represent a client, as a lawyer, before the City of Philadelphia, the Board, or any other board or commission on which you serve, or otherwise, Section 3(e) of the Ethics Act would not operate to bar such activity. Handsel B. Minyard, Esquire December 21, 1987 Page 3 If, however, the activities that you intend to undertake before the City of Philadelphia, the Board or any other board or commission on which you serve, the governmental body with which you have been associated while employed by the City of Philadelphia -- do not fall within the category of the "practice of law" the prohibitions of Section 3(e) of the Ethics Act might be applicable. Activities which might be considered, by the Commission, not to constitute the "practice of law" or to be undertaken in the capacity as lawyer - client, might include activities such as lobbying and negotiating on contracts. However, it is assumed, for the purposes of this Advice, that you intend to undertake these activities in the capacity of lawyer - client, that these activities would constitute the practice of law, and that the provisions of Section 3(e) of the Ethics Act, pursuant to the mandates of the Supreme Court's ruling would, therefore, be inapplicable. In any event, you should be advised that your activity, even if Section 3(e) of the Ethics Act were to be applicable, would not regulate your conduct, except with respect to the City of Philadelphia or the Board, or any other boards or commissions on which you served, the "governmental body" with which you are "associated" while employed by the City of Philadelphia. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the City of Philadelphia or the Board, or any other boards or commissions on which you served, would.not be restricted by Section 3(e) of the Ethics Act in any event. Lastly, under Section 3(a) and 3(b) of the Ethics Act, 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 P.S. 403(a) and (b). It is assumed that such a situation does not exist here. Referenced to this section 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. Conclusion: Section 3(e) of the Ethics Act does not restrict your representation or your activities, as outlined above, insofar as those activities constitute the practice of law. 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. Handsel B. Minyard, Esquire December 21, 1987 Page 4 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. Sincerely, Vincent J. Dopko General Counsel