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HomeMy WebLinkAbout20-506 GuiddyPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL February 26, 2020 FACSIMILE: 717-787-0806 WEBSITE: www.ethics. oa.aav Ms. Melissa A. Guiddy, Esquire Westmoreland County Solicitor 20-506 Dear Ms. Guiddy: This responds to your letters dated December 13, 2019, and January 3, 2020, by which you re nested an advisory from the Pennsylvania State Ethics Commission ("Commission's. Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa—TS. § 1101 et seq., would impose prohibitions or restrictions upon an individual employed as the Assistant County Solicitor for the Tax Claim Bureau of Westmoreland County ("County"), Pennsylvania, with regard to simultaneously serving as an independent contractor to the County for the purpose of providing legal representation to indigent defendants in certain types of criminal cases when the Westmoreland County Public Defender's Office cannot provide such legal representation because of a conflict. Facts: You have been authorized by Timothy Andrews, Esquire ("Mr. Andrews") o request an advisory from the Commission on his behalf. You have submitted facts that may be fairly summarized as follows. Mr. Andrews is employed as the Assistant County Solicitor for the County Tax Claim Bureau. Mr. Andrews was appointed as the Assistant County Solicitor for the County Tax Claim Bureau by the County Board of Commissioners. You have submitted a copy of a position description for Mr. Andrews' position with the County, which document is incorporated herein by reference. Pursuant to the Public Defender Act, 16 P.S. § 9960.1 et seg., the Westmoreland County Public Defender's Office ("Public Defender's Office") is responsible for providing legal representation to defendants in certain types of criminal cases who lack sufficient funds to obtain legal counsel, hereinafter referred to as "Indigent Defendants." From time to time a conflict may prohibit the Public Defender's Office from providing legal representation to an Indigent Defendant. The Westmoreland County Court of Common Pleas ("County Court of Common Pleas") currently appoints up to eleven attorneys, hereinafter referred to as "Conflict GuiddV1 20-506 Page 2 February 26, 2020 Counsel," to provide criminal defense services to Indigent Defendants who may not be represented by the Public Defender's Office. An attorney who is appointed to serve as Conflict Counsel enters into a Conflict Counsel Agreement ("Agreement") that is first presented to the President Judge of the County Court of Common Pleas for review and approval of the attorney's qualifications to provide the criminal defense services and for review and approval of the reasonableness of the terms of compensation and expense reimbursement set forth within the Agreement. The Agreement is then presented to the County Board of Commissioners for approval at a public meeting. Once approved, the Agreement is administered by the County Court of Common Pleas. The term of the Agreement is typically one year. It has been proposed that Mr. Andrews be appointed as Conflict Counsel by the County Court of Common Pleas. Mr. Andrews would be paid $1,875.00 per month for handling no more than 40 assigned cases. The Agreement between Mr. Andrews and the County would provide that Mr. Andrews would be an independent contractor to the County and not an employee of the County. The Agreement would further provide that Mr. Andrews would be solely responsible for determining the means and methods for performing all services under the Agreement and that Mr. Andrews would determine the time, place, and manner in which such services would be carried out. Based upon the above submitted facts, you ask whether the Ethics Act would impose any prohibitions or restrictions upon Mr. Andrews with regard to simultaneously serving as the Assistant County Solicitor for the County Tax Claim Bureau and an independent contractor to the County in the capacity of Conflict Counsel. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics —Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully discllosed all of the material facts. As the Assistant County Solicitor for the County Tax Claim Bureau, Mr. Andrews is a public official/public employee subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. --No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms pertaining to conflicts of interest under the Ethics Act are defined as follows: § 1102. 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 Guild 120-506 e ruary26, 2020 Page 3 family or a business with which he or a member of his immediate family is associated. The term 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. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, 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 use of authority of office is not limited merely to voting, but extends to any use of authority of office including but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows: § 1103. Restricted activities (f) Contract. --No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). The term "contract" is defined in the Ethics Act as follows: § 1102. Definitions Gui�dd , 20-506 February 26, 2020 Page 4 "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. § 1102. Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official/public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an open and public process" be observed as to the contract with the governmental body. Section 1103(f) of the Ethics Act also provides that the public official/public employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. With regard to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const, Art. 6, § 2. There does not appear to be any statutorily - declared incompatibility that would preclude Mr. Andrews from simultaneously serving as the Assistant County Solicitor for the County Tax Claim Bureau and an independent contractor to the County in the capacity of Conflict Counsel. Turning to the question of conflict of interest, where simultaneous service would place the public official/public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02-009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official/public employee to function in the conflicting positions without running afoul of Section 1103(a) of the Ethics Act. Absent a statutorily -declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position. However, in each instance of a conflict of interest, the individual would be required to abstain from participation. In this case, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude Mr. Andrews from simultaneously serving as the Assistant County Solicitor for the County Tax Claim Bureau and an independent contractor to the County in the capacity of Conflict Counsel. Consequently, such simultaneous service would be permitted within the parameters of Section 1103(a) of the Ethics Act. This Advice is expressly subject to the condition that Mr. Andrews would perform the duties of the aforesaid positions without an overlap of time. Cf., BornsteinOrder 1463; Klein, Advice 17-566; Turner, Advice 17-554; Kkj , Advice 4 537. , The restrictions and requirements of Section 1103(f) of the Ethics Act would have to be observed as to the Agreement. Gu[dc{ , 20-506 February 26, 2020 Page 5 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) Timothy Andrews, Esquire r. Andrews") is employed as the Assistant County Solicitor for the Tax Claim Bureau of Westmoreland County ("County"), Pennsylvania; (2) Mr. Andrews was appointed as the Assistant County Solicitor for the County Tax Claim Bureau by the County Board of Commissioners; 3) pursuant to the Public Defender Act, 16 P.S. § 9960.1 et se ., the Westmoreland County Public Defender's Office ("Public Defender's -O -ce") is responsible for providing legal representation to defendants in certain types of criminal cases who lack sufficient funds to obtain legal counsel, hereinafter referred to as "Indigent Defendants"; (4) from time to time a conflict may prohibit the Public Defender's Office from providing legal representation to an Indigent Defendant; (5) the Westmoreland County Court of Common Pleas {"County Court of Common Pleas" currently appoints up to eleven attorneys, hereinafter referred to as "Conflict Counsel,' to provide criminal defense services to Indigent Defendants who may not be represented by the Public Defender's Office; (6) an attorney who is appointed to serve as Conflict Counsel enters into a Conflict Counsel Agreement ("Agreement") that is first presented to the President Judge of the County Court of Common Pleas for review and approval of the attorney's qualifications to provide the criminal defense services and for review and approval of the reasonableness of the terms of compensation and expense reimbursement set forth within the Agreement; (7) the Agreement is then presented to the County Board of Commissioners for approval at a public meeting; (8) once approved, the Agreement is administered by the County Court of Common Pleas; (9) the term of the Agreement is typically one year; (10) it has been proposed that Mr. Andrews be appointed as Conflict Counsel by the County Court of Common Pleas; (11) Mr. Andrews would be paid $1,875.00 per month for handling no more than 40 assigned cases; (12) the Agreement between Mr. Andrews and the County would provide that Mr. Andrews would be an independent contractor to the County and not an employee of the County; and (13) the Agreement would further provide that Mr. Andrews would be solely responsible for determining the means and methods for performing all services under the Agreement and that Mr. Andrews would determine the time, place, and manner in which such services would be carried out, you are advised as follows. As the Assistant County Solicitor for the County Tax Claim Bureau, Mr. Andrews is a public official/public employee subJect to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seg. Subject to the restrictions, conditions, and qualifications set forth above, Mr. Andrews may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as the Assistant County Solicitor for the County Tax Claim Bureau and an independent contractor to the Count in the capacity of Conflict Counsel. The restrictions and requirements of Section 1103(lj of the Ethics Act would have to be observed as to the Agreement. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 Guidd , 20-506 e ruary 26, 2020 Page 6 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 writingg and must be actuall received at the Commission within thing (30) days of the date o t ►s v►ce 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 (71 7-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, V)-R + Robin M. Hittie Chief Counsel