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HomeMy WebLinkAbout95-581 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 6, 1995 95 -581 Re: Conflict, Public Official /Employee, Private Employment or Business, General Assembly, State Representative, Attorney, Representation of Clients Before Governmental Bodies. This responds to your letter of June 9, 1995, in which you requested confidential advice from the State Ethics Commission. Issue: Whether a state representative is prohibited or restricted by the Public Official and Employee Ethics Law from working with, being employed by or associated with a business /person in a private capacity in addition to public service. Facts: You are a State Representative from A. At the present time, a client wishes to have you represent him in an appeal he has filed to B. You would like to represent this client in this matter and do not intend to charge any fee. You are requesting a confidential advisory opinion from the Commission with regard to your proceeding as counsel for your client in this appeal. Discussion: As State Representative for the Commonwealth of Pennsylvania, 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, Confidential Advice, 95 -581 July 6, 1995 Page 2 "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. "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 been 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, 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 Confidential Advice, 95 -581 July 6, 1995 Page 3 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 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 your case, you in a private capacity as an Attorney seek to represent a client before a governmental body. Pennsylvania Public Utility Bar Association v. Thornburgh, 434 A.2d 1327, 62 Pa. Commw. 88 (1981), affirmed per curiam 450 A.2d 613, 498 Pa. 589 (1982), dealt with the applicability of Section 3(e) of the Ethics Act of 1978 to attorneys in the regulation of their practice of law. In Pennsylvania Public Utility Commission Bar Association, supra, the Court held that former Section 3(e) of the Ethics Act of 1978, the predecessor of Section 3(g), was an impermissible intrusion upon the Supreme Court's authority to regulate an attorney's conduct; the State Ethics Commission has applied this decision to mean that there are no prohibitions under Section 3 (g) of the current Ethics Law upon your conduct insofar as that conduct constitutes the practice of law. Spataro, Opinion 89- 009. Therefore, insofar as your conduct would constitute the practice of law, Section 3(a) of the Ethics Law cannot be applied to restrict that proposed activity. Particular reference should be made to the decision of the Commonwealth Court at Footnote 7, 434 A.2d at page 1331 -1332. In this note, the Court indicated that any activity in which the attorney purports to render professional services to a client may only be regulated by the Supreme Court. We must conclude that to the extent that you as an attorney in the practice of law would represent a client, Section 3(a) of the Ethics Law would not operate to bar such activity. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the propriety of any other statute, code, regulation or ordinance other than the Ethics Law has not been considered. Specifically not addressed in this Advice is the applicability of the Rules of Professional Conduct. Conclusion: Section 3(a) of the Ethics Law does not restrict your representation or your activities as to the private practice of law, as outlined above, insofar as those activities constitute the Confidential Advice, 95 -581 July 6, 1995 Page 4 practice of 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 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 thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2(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 thirty (30) days may result in the dismissal of the appeal. Vincent J. Dop Chief Counsel