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HomeMy WebLinkAbout94-610 IngramDear Ms. Ingram: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 27, 1994 Germaine Ingram, Esquire Raynes, McCarty, Binder, Ross & Mundy 20th Floor 1845 Walnut Street Philadelphia, PA 19103 94 -610 Re: Conflict, Public Official /Employee, Private Employment or Business, General Counsel, School District of Philadelphia, Private Practice of Law. This responds to your letter of September 8, 1994, in which you requested advice from the State Ethics Commission. Issue: Whether General Counsel for the School District of Philadelphia is prohibited or restricted by the Public Official and Employee Ethics Law from continued involvement in various cases at a private practice where she has previously been employed, in addition to public service. Facts: You are about to assume the full -time, salaried position of General Counsel for the School District of Philadelphia. In that capacity, you will head the School District's legal department, advise the District Superintendent and the Board on legal matters, and serve as Assistant Secretary to the Board. The position which you are leaving is as a nonequity partner with a litigation firm. Following your anticipated move to the School District on October 11, 1994, you wish to continue your involvement in a few of the cases handled at the firm. You state your view that there is no conflict, as defined by the Rules of Professional Conduct, between the paries and interests in those cases in which you wish to continue your participation and your representation of the School District. You state that you can envision no set of circumstances where your status as General Counsel would have an impact on the outcome of the cases. Finally, you state that you will limit your time commitment so as to avoid an encroachment upon your responsibilities as General Counsel. Ingram, Germaine, Esquire, 94 -610 September 27, 1994 Page 2 Based upon all of the above, you request an advisory from the State Ethics Commission as to any applicable prohibitions or restrictions under the Ethics Law. Discussion: As General Counsel for the School District of Philadelphia, you will, upon assuming that position, become a public employee as that term is defined under the Ethics Law, and hence you will be subject to the provisions of that law. Before addressing the applicable provisions of the Ethics Law, it is initially noted that the Supreme Court of Pennsylvania has the exclusive authority to regulate a Pennsylvania attorney's conduct in the private practice of law, see e.g., Pennsylvania Public Utility Bar Association v. Thornburgh, 62 Pa. Cmwlth. 88, 434 A.2d 1327 (1981), aff'd. per curiam, 498 Pa. 589, 450 A.2d 613 (1982). This Advice does not address the Rules of Professional Conduct which apply to Pennsylvania attorneys. Turning now to the applicable provisions of the Ethics 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 of his immediate family or a business with which he or a member of his immediate family is associated. Ingram, Germaine, Esquire, 94 -610 September 27, 1994 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. 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 or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the instant matter, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The facts which you have submitted do not indicate what will be the nature of your relationship to the firm and its clients. This Advice shall assume that the firm will be a business with which you will be associated, within the above definition. It is noted that Section 3(a) of the Ethics Law does not prohibit public officials / employees from outside business activities or employment; however, the public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. A public official /employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, Opinion 89 -013. Thus, a public official /employee could not perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as a means, in whole or part, to carry out private business activities. In addition, the public official /employee could not during Ingram, Germaine, Esquire, 94 -610 September 27, 1994 Page 4 government working hours, solicit or promote such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of confidential information received by holding public office / employment for such a prohibited private pecuniary benefit. In the event that the private litigation firm and /or its client (s) would have a matter pending before your governmental body or if you as part of such official duties must participate, review or pass upon that matter, a conflict would exist. Miller, Opinion 89 -024. In those instances, it will be necessary that you be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that you abstain from participation but also file a written memorandum to that effect with the person recording the minutes or your supervisor. In summary, the Ethics Law would restrict the following: 1. The use of authority of office to obtain any business in a private capacity; 2. utilization of confidential information gained through public position; 3. participating in discussions, reviews, or recommendations on matters which relate to the business /private employer which may come before the governmental body and in such cases publicly announcing the relationship or advising the supervisor as well as filing a written memorandum as per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. 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 School Code and /or the Rules of Professional Conduct. Conclusion: As General Counsel for the School District of Philadelphia, you will, upon assuming the said position, become a public employee subject to the provisions of the Ethics Law. Section 3 (a) of the Ethics Law would not preclude you from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that the employer /business or its client(s) would have a matter pending before your governmental body, then you could not participate in Ingram, Germaine, Esquire, 94 -610 September 27, 1994 Page 5 that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above would have to be satisfied. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Specifically not addressed herein is the applicability of the School Code and /or the Rules of Professional Conduct. 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 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 FAS 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. in erely, Vincent . Dopko Chief Counsel