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HomeMy WebLinkAbout88-632 TurnerDonald C. Turner, Esquire 17 West Miner Street P.O. Box 660 West Chester, PA 19381 -0660 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 26, 1988 88 -632 Re: Conflict of Interest, Public Official, Attorney, Representation, Appointment as Township Auditor Dear Mr. Turner: This responds to your letter of August 26, 1988, in which your requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any restrictions or prohibition upon an attorney who represents clients before various agencies of the township from being appointed and serving as township auditor. Facts: You state that the Board of Supervisors of West Goshen Township recently appointed you to serve as township auditor. You further state that you have not, as yet, taken the oath of office or commenced service because of a concern that you_have as an attorney representing private clients before various agencies of the township including but not limited to the planning commission, zoning hearing board or the board of supervisors. After noting that you have no financial interest in the matter constituting the subject before the appropriate township agency, you advise that you are associated with the law firm of MacElree, Harvey, Gallagher & Featherman, Ltd. and that the lawyers in this firm including yourself have in the past, currently and will in the future represent(ed) various clients primarily in the areas of zoning and subdivision matters before the respective agencies in the township. You then advise that if the State Ethics Commission determines that you may serve as an auditor and continue in your private representation of clients before the township, you will take the oath of office and Donald C. Turner, Esquire September 26, 1988 Page 2 commence duties as an auditor; however, if it is determined that you may not simultaneously serve as auditor and represent private clients before the township, you will not accept such position. You conclude by requesting advice on the above situation under the Ethics Act. Discussion: If you become a township auditor, you would become a "public official" as that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code X1.1. As such, your conduct would be subject to the provisions of the Ethics Act and the restrictions therein would be 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 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 Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, Pa. Commw. Ct. , 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. In determining whether a conflict would arise if you were to simultaneously represent private clients before various agencies and also serve as township auditor, it is necessary to review your conduct both from the perspective of a private attorney as well as township auditor. Donald C. Turner, Esquire September 26, 1988 Page 3 As to your conduct of an attorney representing private clients before township agencies, you are probably aware of the case Pennsylvania PUC Bar Association v. Thornburgh, 62 Pa. Commw. Ct. 88, 434 A.2d 1327 (1981), affirmed per curium 498 Pa. 589, 450 A.2d 613 (1982), which deals with the applicability of Section 3(e) of the Ethics Act to attorneys and the regulations of their practice of law. In the cited case, 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 the Ethics Act upon your conduct insofar as that conduct constitutes the practice of law. Therefore, insofar as your conduct relates to representing private clients before various township agencies, and such conduct would constitute the practice of law, the Ethics Act can not 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 purports 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 various township agencies or otherwise, the Ethics Act would not operate to bar such activity. Turning to the review of your conduct from the perspective of township auditor, the Ethics Act would not per se restrict your service as a public official, township auditor, when you have outside employment. See Goodman, Opinion 88 -001. However, although the Ethics Act would not prohibit you from accepting the position of township auditor, the Ethics Act would restrict your activity as a township auditor in any situation wherein you would have to perform your auditing function as township auditor as to matters that involved your (or your firm's) representation of clients before the township. The foregoing is restricted by the Ethics Act because you as an auditor would be performing public functions of auditing matters wherein you represented clients in a private capacity. Additionally, since you are a member of the above law firm, it is clear that that is a business with which you are associated as that term is defined under the Ethics Act. 65 P.S. §402. Accordingly, you could not perform your auditing function as to any matter in which any member of your firm was involved in the representation of private clients before the township. Thus, although the Ethics Act would not restrict you from accepting the position of township auditor under these facts Donald C. Turner, Esquire September 26, 1988 Page 4 and circumstances, you could not in performing your auditing function, review any matters relating to the private representation of clients by yourself or a member of your firm as to any matters involving the township. 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: If you become a township auditor, you would be a public official subject to the provisions of the Ethics Act. Under the Pennsylvania PUC Bar Association case, the Ethics Act would not operate to restrict your activity insofar as it relates to the practice of law in representing clients for various township agencies. As to your position of township auditor, the Ethics Act would not restrict you from becoming a township auditor when you and members of your firm represent private clients before the township. However, you could not participate in performing any auditing functions as to matters wherein you or a member of your firm represented clients in private matters before the township for the reasons noted above. Lastly, the propriety of the 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. 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 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