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HomeMy WebLinkAbout97-596 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 23, 1997 97 -596 Re: Conflict, Public Official /Employee, County Commissioner, Attorney, Practicing Before County Court of Common Pleas. This responds to your letter of June 20, 1997 by which you requested a confidential advisory from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a County Commissioner, who in a private capacity is an attorney, as to his practice of law before that County's Court of Common Pleas. Facts: As a Member and Chairman of the Board of County Commissioners in County A, you request a confidential advisory from the State Ethics Commission. In a private capacity, you are an attorney licensed to practice law in Pennsylvania and New Jersey, and you continue to maintain a general practice of law in County A. Your contact with the Court of Common Pleas in County A has been extremely limited. You state that you are not aware of any prohibition to your practicing law before the Court of Common Pleas in County A, but you seek an advisory from this Commission to confirm that neither the Ethics Law nor any other Act or Regulation of the Commonwealth of Pennsylvania or the Pennsylvania Supreme Court, would bar your representation of any client before the Court of Common Pleas in County A. 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 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 Commissioner for County A, you a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Confidential Advice of Counsel, 97 -596 July 23, 1997 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. "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." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "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. Section 3(j) of the Ethics Law provides as follows: Confidential Advice of Counsel, 97 -596 July 23, 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. In each instance of a conflict, 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 voting is permissible provided the disclosure requirements noted above are followed. See, Maker, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, 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. Your law practice is a business with which you are associated. Furthermore, it is noted that a private pecuniary benefit to a business client may form the basis for a conflict of interest. Miller, Opinion No. 89 -024; Kannebecker, Opinion No. 92 -010. Section 3(a) would apply to restrict your conduct in your capacity as a County Commissioner. Pursuant to Section 3(a) of the Ethics Law, it would be impermissible, for example, for you as a County Commissioner to use the authority of that public Confidential Advice of Counsel, 97 -596 July 23, 1997 Page 4 position or confidential information to which you have access by being in that position for a private pecuniary benefit for your legal client(s). In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. However, in your capacity as a lawyer, Section 3(a) would not apply to restrict you as to practicing before the County A Court of Common Pleas. Where an attorney purports to render professional legal services to a client, his conduct is regulated by the Pennsylvania Supreme Court and not by this Commission. Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 434 A.2d 1327 (Pa. Commw. Ct. 1981), aff'd. gar curiam, 498 Pa. 589, 450 A.2d 613 (1982). To the extent you have requested an advisory from this Commission not only as to the Ethics Law, but also as to any other Act or Regulation of the Commonwealth of Pennsylvania or the Pennsylvania Supreme Court, you are advised that the State Ethics Commission does not have the jurisdiction to issue advisories as to Acts other than the Ethics Law or as to Regulations other than its own. 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 County Code or the Rules of Professional Conduct. Conclusion: As a Commissioner for County A, you are a public official subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, in your capacity as a County Commissioner, you may not use the authority of your public position or confidential information to which you have access by being in that position for a prohibited private pecuniary benefit, such as to yourself, your law practice, and /or your legal client(s). In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. Section 3(a) would not apply to restrict you in your capacity as a lawyer as to practicing before the County A Court of Common Pleas, insofar as your conduct would involve the rendering of professional legal services to a client. Where an attorney purports to render professional legal services to a client, his conduct is subject to regulation by the Pennsylvania Supreme Court and not by this Commission. 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. Confidential Advice of Counsel, 97 -596 July 23, 1997 Page 5 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. Sincerely, Vincent .1: Dopko Chief Counsel