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HomeMy WebLinkAbout97-508 NarducciLeigh P. Narducci, Esquire Narducci, Moore & Fleisher Office Court at Blue Bell 589 Skippack Pike Suite 300 Blue Bell, PA 19422 Dear Ms. Narducci: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 22, 1997 97 -508 Re: Conflict, Public Official /Employee, Township, Supervisor, Attorney, Private Clients. This responds to your letter of December 17, 1996 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 Township Supervisor who is also a practicing attorney as to participation in matters before the Board of Supervisors which involve a client formerly represented by the Supervisor. Facts: You are a Supervisor in Whitpain Township, Montgomery County. You are also a practicing attorney in Pennsylvania for approximately the past ten years. You have represented an individual in some business matters including but not limited to litigation and other matters. You were not his sole attorney but did do work for him on both an hourly and contingent fee basis. This individual is a developer who owns several units and vacant land in the Township and has brought matters before the Board in the past. On each and every occasion, you have publicly announced your affiliation with him and have recused yourself from voting on or participating in the meeting. You do not represent him on any matters at this time and it does not appear that you will represent him in the future. Your specific inquiry is whether you must continue to refrain from participation on matters involving this individual now that you no longer represent him and if so, for what period of time. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. §§407(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 Narducci, 97 -508 January 22, 1997 Page 2 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. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Supervisor for Whitpain Township, Montgomery County, 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 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. 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. Section 3(j) of the Ethics Law provides as follows: Narducci, 97 -508 January 22, 1997 Page 3 Section 3. Restricted activities (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest, as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the . inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. The precise issue you pose about your possible conflict as to a law client you have represented has been addressed by the full Commission in Kannebecker, Opinion 92 -010. In Kannebecker, supra, the Commission set forth the following parameters as to when a Township Supervisor, who was a practicing attorney, had a conflict when his clients had matters pending before the Township Board: We believe that you would indeed have a conflict as to an ongoing client or a client who is on a retainer even if you would not represent the client as to a matter pending before the Township. However, as to former or past clients, we do not believe as a general rule that you would have a conflict. Under certain circumstances, a conflict could exist as to past clients; such would depend upon factors like the number of prior Narducci, 97 -508 January 22, 1997 Page 4 representations of any given client and the period of time over which that occurred. Kannebecker at page 5. In applying Section 3(a) and the Kannebecker decision to the facts of your case and in particular your factual statements that you "do not represent him [the client] on anything at this time nor does it appear that [you] will in the future," you are advised that you do not have a conflict as to the former client and would not be prohibited by Section 3(a) of the Ethics Law from participating and voting on matters before the Board as to pending matters concerning your past client. 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 or Rules of Professional Conduct. Conclusion: As a Supervisor in Whitpain Township, Montgomery County, you are a public official subject to the provisions of the Ethics Law. Based upon the factual representation noted above, a Second Class Township Supervisor would not have a conflict as to participating or voting on matters pending before the Board as to a past law client. 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. This letter is a public record and will be made available as such. 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. S e,rely, Vincent opk Chief Counsel