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HomeMy WebLinkAbout94-589 McCarthySTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 11, 1994 William J. McCarthy, III, Esquire 825 North Twelfth Street Allentown, PA 18102 -1318 Re: Conflict, Public Official /Employee, Solicitor, Private Representation of 94 -589 Second Class Township, Supervisor's Spouse. Dear Mr. McCarthy: This responds to your letter of July 12, 1994 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a second class township solicitor from representing the supervisor's wife in personal injury litigation. Facts: As the Solicitor for a Second Class Township in Bucks County, you have been requested by the wife of one of the Township Supervisors to represent her in "slip and fall" case which is not related in any fashion to the Township. You request advice as to whether the above situation would be contrary to the Ethics Law. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. 5S407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § 5407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Solicitor for a Second Class Township in Bucks County, you are a public official /employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. McCarthy, III, William J., Esquire, 94 -589 August 11, 1994 Page 2 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 of his immediate family or a business with which he or a member of his immediate family is associated. 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 anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. In the instant matter, the Ethics Law would not prohibit you from representing a supervisor's spouse in a personal injury matter based upon the submitted facts. Although the Commission has issued a number of advisory opinions involving prohibitions or restriction upon a public official /employee who has a private business relationship with another public official /employee or immediate family member within that municipal body, such cases have involved factual circumstances where the public official /employee whose conduct is in question is in a position of a supervisor or in a McCarthy, III, William J., Esquire, 94 -589 August 11, 1994 Page 3 position of employer to the other public official/ employee/ immediate family member. See Bassi Opinion 86- 007 -R; Woodrinq Opinion, 90 -001. In the foregoing cited cases and others, the concern of the Commission was that the public official /employee whose conduct was in question was in a position to use the authority of office for a private pecuniary benefit vis -a -vis the subordinate or employee with whom there was an outside business or financial relationship. Those types of concerns do not appear to be present in the instant case in that you are not in a supervisory or employer position but rather are appointed by the Township Board of Supervisors and provide legal services and advice to the members of that board. Because of your subordinate position, you are not in a position to use the authority of your office for a private pecuniary benefit to yourself vis -a -vis the supervisor whose wife you are representing in a private capacity. It is assumed for purposes of this advice that your fee arrangements are being paid privately by personal funds of the supervisor and /or his spouse and that there is no utilization of township facilities, equipment, or personnel relative to your private representation of the supervisor's spouse. Pancoe, Opinion 89 -011. Based upon the submitted facts and the above factual assumptions, Section 3(a) of the Ethics Law would not prohibit or restrict your representation of a supervisor's wife in a "slip and fall" case. It is also assumed that there are no improper "understandings" as set forth in Sections 3(b) and 3(c) of the Ethics Law. 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 respective municipal code and the Rules of Professional Responsibility. Conclusion: As Solicitor for a second class township, you are a public official /employee subject to the provisions of the Ethics Law. Based upon the stated facts and factual assumptions noted above, Section 3(a) of the Ethics Law would not prohibit or restrict a second class township solicitor from representing a supervisor's wife in a "slip and fall" case. 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 such. McCarthy, III, William J., Esquire, 94 -589 August 11, 1994 Page 4 proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa. Code 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. cerely, Vincent J. Dopko Chief Counsel