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Home My WebLink About88-538 MooreReizdan B. Moore, Esquire 204 State Street Harrisburg, PA 17101 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O..BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 March 31, 1988 ADVICE OF COUNSEL 88 -538 Re. Attorney, Legal Counsel to Democratic Caucus, City Councilmember and President, Bond Co- Counsel, Section 3(a) Dear Mr. Moore: This responds to your letter of February 23, 1988, in which you requested advice from the Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restrictions upon an attorney who is Legal Counsel to the Democratic Caucus in the House of Representatives and a member and President of City Council when he seeks as a private attorney to be bond Co- Counsel relative to a bond issue by a State University. Facts: You state that you currently are the Legal Counsel to the Democratic Caucus in the House of Representatives and a member and president of Harrisburg City Council. After noting that you maintain a private law practice, you state that an acquaintance has offered you the opportunity to participate in a bond issue by Lincoln University wherein you would be bond co- counsel. You note that you worked on bond proposals during your tenure as a councilmember for which you received no private fee. After stating that Lincoln University is a state related institution which is administered by a board of trustees and president,; you advise that you have had no contact with any of the 39 voting members of the Board which would include the Governor, Secretary of Education, and the President of the University. Parenthetically, you note that your acquaintance's law firm, Reed, Smith, Shaw and McClay, was retained by the House of Representatives relative to an action filed by the U.S. Attorney for the Middle District concerning the House Select Committee investigation of the construction of the capitol Reizdan B. Moore, Esquire Page 2 that the Reed firm was retained to represent the Committee Chairman, an investigator and yourself, in a defamation action filed by stone merchants. As to this latter action, you note that your acquaintance is assisting the firm in the representation of this action which is still pending. Following your citation of Hershock Opinion, 85 -016, you request advice as to whether you may participate as bond co- counsel under the above facts and circumstances. Discussion: As a City Councilmember and Legal Counsel Democratic Caucus, you are a "public official" as that defined in the Ethics Act. 65 P.S. 402; 51 Pa. _Code such, your conduct is subject to the provisions of the Act. :to the term is 1.1. As Ethics Section 3(a) of the Ethics Act provides: Section 3(a) Restricted activities. (a) No public official or public employee shall use his public Office or any confidential information received 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) In the instant matter, you have requested advice as to your conduct, not as it relates to you as city councilmember or Legal Counsel, but solely as it relates to your private practice of law regarding becoming Co- Counsel for bond underwriting for a state university. You are probably aware of the case entitled Pennsylvania Public Utility Bar Association v. Thornburg, 434.and 1327, 62 Pa. Cnwlth. 88 (1981), affirmed per curiam 450 A.2d 613, 498 Pa. 589 (1982). In light of the 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 an attorney's conduct insofar as that conduct constitutes the practice of law. Therefore, insofar as your conduct relates to being bond co- counsel, such conduct constitutes the practice of law and Section 3(a) of the Ethics Act cannot be applied to restrict that Reizdan B. Moore, Esquire Page 3 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, or bond co- counsel, Section 3(a) of the Ethics Act would not operate to bar such activity. If, however, the activities that you intend to undertake do not fall within the category of the "practice of law ", Section 3(a) of the Ethics Act might be applicable. However, for the purpose of this advice, it is assumed 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(a) of the Ethics Act, pursuant to the mandates of the Supreme Court's ruling would therefore be inapplicable. Section 3(b) of the Ethics Act provides: 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 the 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 judgement of the public official or public employee or candidates for public office would be influenced thereby. 65 P.S. 403(b). Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgement would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct Reizdan B. Moore, Esquire Page 4 other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: Section 3(a) does not restrict your activities as a bond co- counsel insofar as those activities constitute the practice of law. The propriety of your proposed conduct has only been addressed under the Ethics Act. 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 2.21. Sincerely, n* Vincent J. Dopko General Counsel