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HomeMy WebLinkAbout91-530 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 4, 1991 91 -530 Re: Conflict, Public Official /Employee, Township Supervisor, Business with Which Associated, Law Firm, Representation, Zoning Officer, Township Engineer. This responds to your letter of February 23, 1991, in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a township supervisor who is also a lawyer with a general practice in the same county, where the supervisor as a lawyer in a private capacity represents private clients which would include the zoning officer and township engineer. Facts: As one of five members of the board of supervisors of Township A, a second class township in County B, you are presently serving your second term. You are also a lawyer with a general practice in County B. Recently, the zoning officer and the township engineer, both of whom maintain businesses in the community, consulted you (separately) for legal work in connection with their private businesses. While you note that the requirement of confidentiality applicable to lawyers prevents you from disclosing the nature of the legal matters, you are able to unequivocally state that none deal with the township or anyone who has business or other relationships with the township. You have entered into your firm's standard fee agreements with each of these individuals, but you have not yet collected any fees. Although you did not solicit the legal work ' from either of these individuals, you state that you would like to do it. The work is within your area of expertise, and you have become friendly with each of these individuals and their spouses during your tenure at the township. Further, you support your family by practicing law. Neither individual sought your legal services in exchange for their township positions. Page 2 Although these individuals are re- appointed annually, both men served the township for many years before you were elected and before either of them came to see you as a lawyer. You note that you recently attended a seminar and became concerned that these business relationships might appear to violate some provision of the Ethics Law. Although you state that you have reviewed Section 403 of the Ethics Law and you do not believe that there is a problem, you state your belief that as a reality of political life, a public official can be "ruined just as surely by an accusation of an ethics violation as by a finding that a violation occurred." You request a confidential advice in this matter. Discussion: As a supervisor for Township A, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. Page 3 "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would he influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. It must initially be noted that this advice may only address your request from your perspective as a public official as a township supervisor. In your private capacity as a private attorney, you are not a public official or public employee, and as such are regulated by the Supreme Court of Pennsylvania. However, as a public official, you are subject to the provisions of the Ethics Law. Generally, the Ethics Law would not restrict a township supervisor from also working for a private law firm unless that employment was adverse to, or inherently incompatible with the duties and responsibilities required of the township supervisor. Conflicting or adverse interests exist where a public official /employee represents two competing interests simultaneously. In the instant matter, you are a lawyer with a general practice law firm in County B. You do not state whether you are employed as an associate or whether you are a partner, but in any event, the law firm by definition is a business with which you are associated. In the course of your duties as a township Page 4 supervisor for Township A, you may at times be required to consider matters brought before the township supervisors by you or other attorneys with your firm, by your clients, and /or regarding your clients. In such situations you would obviously find yourself with interests which were in conflict. As a lawyer with a general practice firm serving private clients, which would include the zoning officer and township engineer, it is your duty to those clients and your private employer to represent the interests of those clients. In your capacity as a township supervisor, your primary duty is to represent the township and to further its best interests. This duty is to the public rather than to private clients. The State Ethics Commission has considered a similar question in its opinion in Miller, Opinion 89 -024, involving a township zoning officer who also worked for a consulting firm which performed services for the township as well as private clients whose plans could be brought before the township zoning commission for approval. In Miller, supra, the Commission expressed concern for the potential that persons seeking the approval of the township would favor having their permits submitted by the zoning officer's private employer. Similarly in this case, it seems apparent that persons wishing to have the approval of the township supervisors on any given matter would likely be inclined to retain you or your firm to represent them in such matters, or in other matters with the hopes that you would be in a position to vote favorably on matters that they brought before the township supervisors. For the reasons stated above, the Ethics Law would prohibit you from using the authority of your office to participate in discussions and /or vote in matters brought before the township supervisors by you or your law firm, by your clients, or on matters relating to your clients, with your clients including but not limited to the zoning officer and township engineer. In such situations you clearly must divest yourself from any participation in the township's actions. This result is necessitated by the fact that your actions would result in the securing of a private pecuniary benefit for the business with which you are associated. Additionally, you are prohibited from using confidential information for similar purposes. Therefore, the Ethics Law requires that you abstain from participating in any way and /or voting on any matters submitted to the township supervisors by a business with which you are associated, specifically the general practice firm where you are a lawyer. The Ethics Law further requires that you abstain from participating in any way and /or voting on matters submitted by a Page 5 client of the firm or submitted on behalf of a client of a firm, with those clients to include but not be limited to the zoning officer and township engineer. Your abstention must be publicly announced as well as publicly noted in a written memorandum with the reasons therefore stated therein and said memorandum must be filed with the township secretary. With the proviso stated above, the Ethics Law would not prohibit you from performing the duties of a township supervisor and working as a lawyer for a private law firm so long as you avoid any conflicts pursuant to Section 3(a) of the Ethics Law. In addition, it is parenthetically noted that you should not use any township resources or facilities in order to further thd'interests of the general practice firm, including but not limited to: use of the telephone, staff, equipment, research materials, personnel, or time that you are being paid as a public official. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a township supervisor for Township A, you are a public official subject to the provisions of the Ethics Law. The private general practice law firm with which you are a lawyer constitutes a business with which you are associated. Section 3(a) of the Ethics Law would prohibit you as a township supervisor from participating in any way and /or voting in any matter submitted to the township supervisors by you or other attorneys in the general practice firm, by the clients of the firm, or on behalf of the clients of the firm. In addition, as a public official you may not use any township facilities in order to further the business interests of the general practice law firm. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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 Page 6 Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, �c�.Jr1 Vincent J. Dopko, Chief Counsel