HomeMy WebLinkAbout91-557 AboodThe Honorable Caram J. Abood
103 Colgate Avenue
Johnstown, PA 15905
Re: Judge; Public Official; FIS
Dear Judge Abood:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
July 8, 1991
91 -557
This responds to your letter of May 22, 1991 in which you
requested advice from the State Ethics Commission.
Issue: Whether, in your capacity as a Judge in the 47th Judicial
District of Pennsylvania intending to resign, the restrictions of
Section 3(g) of the Ethics Law or any other restrictions within the
purview or jurisdiction of this Commission would be applicable to
you relative to your practicing law.
Facts: As an incumbent Judge in the 47th Judicial District of
Pennsylvania with intentions of resigning, you seek the advice of
the State Ethics Commission. You ask whether the restrictions of
Section 3(g) of the Ethics Law, 65 P.S. §403(g), would have any
applicability to you in light of the case of Wajert v. State Ethics
Commission, 491 Pa. 255, 420 A.2d 439 (1980), and whether there
would be any other restriction relative to your practicing law
should you resign, within the purview or jurisdiction of this
Commission.
Discussion: In Wajert v. State Ethics. Commission, 491 Pa. 255, 420
A.2d 439 (1980), the Supreme Court of Pennsylvania held that the
statutory predecessor of, Section 3(g), former Section 3(e) of Act
170 of 1978, was unconstitutional insofar as it would be applicable
to a former judge. The Supreme Court clearly stated:
The Honorable Caram J. Abood
July 8, 1991
Page 2
In the rules enforcing [the Code of
Professional Responsibility], this Court had
made it abundantly clear that supervising the
conduct of an attorney, including that of a
former judge, before the courts of this
Commonwealth was a matter exclusively for this
Court.
Waiert, 491 Pa. at , 420 A.2d at 442. (See also Kremer v
State Ethics Commission, 56 Pa. Commw. 160, 424 A.2d 968 (1981)
regarding unconstitutionality of applying disclosure requirements of
Ethics Law to members of the judiciary).
Former Act 170 of 1978 was later amended by Act 9 of 1989, but
the conduct of attorneys in the private practice of law, including
former members of the judiciary, may still only be regulated by the
Supreme Court. Thus, under the existing case law, the Ethics Law
would not restrict you with regard to your private practice of law
upon your resignation from the bench.
However, it is parenthetically noted that should you become an
elected public official or public employee as those terms are
defined by the Ethics Law, in some capacity other than as a member
of the judiciary, or should you become a full -time or part -time
solicitor for a political subdivision or subdivisions, you would be
subject to the Ethics Law restrictions with regard to such
capacities. See, Confidential Advice 91 -527; Confidential Advice
91 -530; Svataro, Opinion 89 -009 at 4; See also, Maunus v. Com.,
State Ethics Com., 544 A.2d 1324, 1326 (1988).
Lastly, your inquiry has only been addressed under the Ethics
Law as interpreted by existing case law.
Conclusion: As an incumbent Judge in the 47th Judicial District of
Pennsylvania with intentions of resigning, you would not be subject
to the requirements of Section 3(g) of the Public Official and
Employee Ethics Law nor would the Ethics Law impose any restrictions
upon you relative to your private practice of law should you resign
from the bench. You are advised that should you hold a position as
a public official or public employee as defined by the Ethics Law,
in a capacity other than as a member of the judiciary, or should you
become a full -time or part -time solicitor for a political
subdivision or subdivisions, you would in such capacities be
subject to the restrictions of the Ethics Law. Your inquiry has
only been addressed under the Ethics Law as interpreted by existing
case law.
The Honorable Carom J. Abood
July 8, 1991
Page 3
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 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,
Vincent Y. Dopko,
Chief Counsel