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HomeMy WebLinkAbout88-569 McClureJohn M. McClure, Esquire Broad and Mechanic Streets 95 North Broad Street P.O. Box 1011 Doylestown, PA 18901 Dear Mr. McClure: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 ADVICE OF COUNSEL May 26, 1988 88 -569 Re: Conflict of Interest, Public Official, Clerk of Courts, Representation of Clients Against the County This responds to you letter of April 4, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon you as the Clerk of Courts from representing a client in a personal injury action that has been instituted against the county. Facts: You state that you were elected to the position of Clerk of Courts of Bucks County in the 1987 general election and that you assumed office the first Monday of January, 1988. You then advise that for the last four years, you have represented Nelson Plunto and his wife Francis, as Plaintiffs, in a personal injury action which arose as a result of injuries allegedly sustained by Mr.. Plunto, an inmate in the Bucks County Prison while working on a maintenance detail. After stating that the injuries left Mr. Plunto as a left hemiplegic you indicate that litigation was instituted which has been pending over the intervening years and that recently an amended complaint was filed on their behalf alleging an ongoing course of harassment by the employees of the Bucks County Department of Corrections which included charges of continuing harassment of a physical nature in retaliation for the filing of the litigation in the first instance and legal harassment in the form of disciplinary action against Mr. Plunto which resulted in a six month delay in his parole. You state that Mr. Plunto is currently a parolee under the supervision of John M. McClure, Esquire May 26, 1988 Page 2 the State Board of Probation and Parole. After advising that the defendants in the litigation are inter alia the County of Bucks, the Prison Board of Bucks County, the individual Commissioners of Bucks County, and the Warden of Bucks County Prison, you advise that there was no active litigation in the case until January 1, 1988 at which time Judge John B. Hannum of the U. S. District Court for the Eastern District called the case for trial. You state that although there was a request made to the Judge that additional time was needed to prepare for trail, a conference was scheduled on March 31, 1988 after which the counsel for the defendants supplied you with a copy of the letter that was sent to the county solicitor concerning your possible conflict of interest in representing these plaintiffs against Bucks County. You then state that you contacted the Standing Committee on Ethics of the Pennsylvania Bar Association wherein one Elwood Malos gave you an initial oral opinion that there would be a conflict which was followed by a subsequent telephonic communication where Mr. Malos confirmed his initial opinion on the matter. You then state that Mr. Malos will issue a written opinion to that effect. You conclude by requesting advice from the Ethics Commission as to whether there would be a conflict on your part under the Ethics Act in light of your position as clerk of courts and plantiff's counsel in a suit against the County. Discussion: As the Clerk of Courts for Bucks County, you are a public official within the definition of that term as set forth in the Ethics Act and the regulations of the Commission. 65 P.S. Section 402; 51 Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act. 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 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. 5403(a). Section 3(a) basically provides that a public official or employee may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of John M. McClure, Esquire May 26, 1988 Page 3 office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law. Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. Section 3(b) of the Ethics Act provides: (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 employee or candidate 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 judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced 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. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. S403(d). John M. McClure, Esquire May 26, 1988 Page 4 Under the above provision of law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. S403(d). Fritzinaer, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor' the appearance or a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. 5401. Such a conflict may exist where an individual represents one or more adverse interests. Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes, Opinion supra. In the instant matter, you as the elected Clerk of Courts of Bucks County are in an elected position wherein you are to act in furtherance of the public interest of the citizenry of Bucks County; however, at the same time, you are representing clients who are in an adverse position to Bucks County. Your situation of being a public official acting on behalf of the citizens of Bucks County in your position of clerk of courts representing the public interest is in conflict with your private interest of presenting these clients who are suing Bucks County. It should be also noted that you, as clerk of courts, are in a position wherein you are privy to various sensitive and confidential information regarding litigation and other matters. Your representation of these clients not only creates conflict but also an appearance of a conflict with the public trust and therefore under Sections 3(a) and 3(d) of the Ethics Act, you should withdraw as counsel of record for the plantiffs who are suing Bucks County. 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 other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a Clerk of Courts for Bucks County, you are a public official subject to the provisions of the State Ethics Act. Under Section 3(a) and 3(d) of the Ethics Act, you should withdraw as legal counsel to these plantiffs who are suing Bucks John M. McClure, Esquire May 26, 1988 Page 5 County in light of your position as Clerk of Courts of Bucks County. Lastly, the propriety of your conduct has only been addressed under the State 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. such. This letter is a public record and will be made available as 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 former 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