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HomeMy WebLinkAbout88-637 HafnerClaude Hafner, II, Esquire 201 North 67th Street Harrisburg, PA 17111 Dear Mr. Hafner: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 11, 1988 88 -637 Re: Conflict of Interest, Member of General Assembly, Bond Counsel for Independent Agency, State Ethics Commission v. Maunus and Thau This responds to your letter of September 6, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any prohibition or restrictions upon a member of the General Assembly if the member, as an attorney, is retained as bond counsel for an independent agency and secondly, what is the effect of the State Ethics Commission v. Maunus /Thau, decision as to the conduct of a member of the General Assembly who is also an attorney. Facts: You state that you are an attorney in the Harrisburg Area who represents a member of the General Assembly. After referencing a prior Advice of Counsel, No. 88 -527, you cite the recent Supreme Court case of State Ethics Commission v. Maunus and Thau, and question the impact of that decision. You then conclude by raising two questions under the Ethics Act: whether a member of the General Assembly who is an attorney may be retained as bond counsel for an independent agency such as the Pennsylvania Housing Finance Agency or the State School Building Authority and secondly, what effect does the Supreme Court decision in State Ethics Commission v. Maunus and Thau have upon the conduct of the member of the General Assembly who is also an attorney. Claude Hafner, II, Esquire October 11, 1988 Page 2 Discussion: As a member of the General Assembly, the individual is a "public official" as that term is defined under the Ethics Act. 65 P.S. S402; 51 Pa. Code X1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. 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. S403(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. 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 Claude Hafner, II, Esquire October 11, 1988 Page 3 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). 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. In applying the above provisions of the Ethics Act of the specific question which you have posed, Section 3(a) of the Ethics Act would not per se preclude a member of the General Assembly from being retained as bond counsel for an independent agency. However, he may not use public office or confidential information to obtain or become bond counsel. For example, he could not use his public position or the status of his public office as means of obtaining the position. Thus, although Section 3(a) of the Ethics Act would not preclude his outside activity as a bond counsel, he may not use public office or confidential information as a means in whole or part to obtain such business. Additionally, any contacts or work in the capacity of bond counsel could not be done at his public office nor could he use the personnel, equipment, supplies, postage, etc., of his public office in performing his duties as bond counsel. See Dorrance, Order 456. As to the conduct of the member of the General Assembly from the perspective as an attorney (bond counsel) for the independent agency, such conduct to the extent that it constitutes the practice of law is beyond the scope of the Ethics Act and may not be addressed herein. See Pennsylvania PUC Bar Association v. Thornburqh, 62 Pa. Commw. Ct. 88, 434 A.2d 1327 (1981) affirmed 498 Pa. 589, 450 A.2d 613 (1982). Turning to your second inquiry as to what revisions the recent Supreme Court decision in State Ethics Commission v. Maunus and Thau, supra would impact upon this advice or a previous advice of counsel, it is clear from reading of the Maunus and Thau, that the issue in that case involved whether a public employee attorney was required to file the Statement of Financial Interests (FIS). That case did not involve any issues concerning the interpretation of the restrictions section of the Ethics Act, 65 P.S. 5403. Since a member of the General Assembly Claude Hafner, II, Esquire October 11, 1988 Page 4 is already required to file the FIS, this cited case would not impose any additional filing requirement upon the attorney /member of the General Assembly. 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. Specifically not addressed in this advice is the State Adverse Interest Act, Legislative Code of Ethics, or the Rules of Professional Conduct for Attorneys in that they do not involve interpretations of the Ethics Act. Conclusion: A member of the General Assembly is a public official subject to the provisions of the State Ethics Act. Subject to the qualifications and limitations noted above, the Ethics Act would not per se preclude a member of the General Assembly who is also an attorney from being retained as bond counsel for an independent agency. As to the recent Supreme Court decision in State Ethics Commission v. Maunus and Thau, supra, that case held that full -time publicly employed attorneys are required to file the Statement of Financial Interests. 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 S2.12. S 'L ncerely, Vincent t . Dopko, General Counsel