Loading...
HomeMy WebLinkAbout1048 TooheyIn Re: James Toohey STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn Julius Uehlein 95- 073 -C2 Order No. 1048 5/29/97 6/11/97 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 DI seq., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not filed and a hearing was waived. The record is complete. A consent agreement was submitted by the parties to the Commission for consideration which was subsequently approved. This adjudication of the State Ethics Commission will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Act 9 of 1989, 65 P.S. §408(h). Any person who violates confidentiality of the Ethics Law is guilty of a misdemeanor subject to a fine of not more than $ 1,000 or imprisonment for not more than one year, 65 P.S. §409(e). Confidentiality does not preclude discussing this case with an attorney at law. Toohev, 95- 073 -C2 Page 2 I. ALLEGATION: That James Toohey, a public official /public employee in his capacity as Solicitor for the Summit Township Sewer Authority, Erie County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he used the authority of his office in an effort to obtain a private pecuniary benefit for himself and /or his law firm when he participated in Authority discussions, actions and decisions relating to the securing and subsequent repayment of a loan from the Authority to; as well as the payment of sewer rental fees by, a business for whom he and /or his firm served as private counsel. II. FINDINGS: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §403(a). 1. James F. Toohey, Esquire, has served as the Solicitor for the Summit Township Sewer Authority (STSA), since approximately 1968. a. Toohey has been reappointed at annual reorganization meetings of the STSA. 2. Toohey is a partner in the law firm of Quinn, Buseck, Leemhuis, Toohey & Kroto, Inc., 2222 West Grandview Boulevard, Erie, PA. a. The firm is commonly referred to as the Quinn Law Firm. 3. Toohey filed Statements of Financial Interests with the STSA on 03/05/91, 03/08/92, 03/17/93, 03/23/94, 02/28/95, and 03/06/96 which disclosed the Quinn lawfirm as a source of income and Toohey's interests in the lawfirm. 4. The Summit Township Sewer Authority (STSA) is an autonomous operating Authority. a. The Authority operates on funds generated from sewer rental fees and tap -in fees. 5. On July 8, 1986, the STSA entered into an agreement with the Gartner -Harf (G.H.) Company to construct a sanitary sewer line to service G.H., a meat processing plant located in Summit Township. $460,000. a. Funding was to be provided through: $250,000 Department of Commerce Bid Loan $ 50,000 STSA $ 70,000 PA Capital Loan Fund $ 90.000 CDBG Grant $460,000 Toohev, 95- 073 -C2 Page 3 6. Gartner -Harf (G -H) guaranteed the repayment of the BID loan by agreeing to pay to the Authority $12,500.00 per year for a term of twenty(20) years; said payment to be made to allow the Authority to make it's payment on the BID loan. The Company agreed to provide a bond to guarantee the payment of the $12,500.00 annually for twenty(20) years, in the event that G.H. ceased operations or was unable to make the annual payment. 7. A second agreement was entered into between G -H Company and the STSA on January 28, 1988, which was a restatement of the terms and conditions of the 1986 Agreement, and increased the cost of the project to $510,000. 8. During the spring of 1990, the owners of Gartner -Harf entered into negotiations with A.O. Odimayo for the sale of the company and subsequently entered into an agreement of sale on August 27, 1990. 9. At the July 26, 1990, STSA meeting Toohey, as Authority Solicitor, is reported as taking action to recover monies owed to the Authority by Gartner -Harf. a. The monies owed to the Authority were in the form of BID loan payments. b. Toohey suggested in a letter that Gartner -Harf pay up the account or the Authority would have no choice but to foreclose. 10. James Toohey began representing A. O. Odimayo /G.H. Processed Beef, Inc. /Pagewood Meat Packing Company, on or about August 15, 1990, twelve days prior to the sale of Gartner -Harf to G.H. Processed Beef, Inc. a. Toohey wrote a letter dated August 15, 1990, to the attorney for G.H. regarding a conference. b. Toohey represented G.H. Processed Beef, Inc., during the purchase of the Gartner -Harf Company. 11. As Solicitor, Toohey reported at the 08/30/90 STSA meeting, that closing on the sale of Gartner -Harf Company had been pending for two weeks, and that he would know more at the end of the week about the status of monies owed to the Authority by the Company. Toohey had been in consultation with Claude Lewis (PA Department of Commerce) regarding the BID loan repayment. a. Toohey also had been representing G.H. Processed Beef at that time. 12. An Asset Purchase Agreement dated 09/05/90, between Gartner -Harf Company and G.H. Processed Beef Company, Inc., was prepared by Toohey as attorney for G.H. Processed Beef, Inc. 13. The Quinn Law Firm issued a Commitment for Title Insurance, which was obtained through the Chicago Title Insurance Company, for a policy to insure the $4.5 million loan from the United Bank for Africa, Ltd., to G.H. Processed Beef, Inc. a. The effective date of the policy was 09/04/90. Toohey, 95- 073 -C2 Page 4 b. Toohey was the authorized agent for the Quinn Law Firm. c. The mortgage between G.H. and the bank was executed 09/05/90. (1) Toohey notarized the mortgage, signed by Adesina Dawodu, Secretary of G.H. Processed Beef, Inc. (2) The mortgage was recorded on 09/07/90, by the Erie County Recorder of Deeds, Record Book 136, Page 758. 14. G.H. Processed Beef, Inc. (Company), re- opened the meat processing plant doing business as Pagewood Meat Packing Company on or about 09/07/90. a. Pagewood Meat Packing Company was incorporated in Pennsylvania on 08/29/90. b. Pagewood is a wholly owned subsidiary of G.H. Processed Beef, Inc. • c. A. 0. Odimayo is identified on the incorporation papers as CEO/Treasurer. d. Pagewood leased the plant and equipment from G.H. Processed Beef, Inc. 15. Prior to September 27, 1990, the Authority Board members attended a meeting with A. 0. Odimayo at which Toohey was present, to discuss the money owed to the Authority on the BID loan. 16. Toohey disclosed his representation of G.H. Processed Beef, Inc., to the Authority Board members during the meeting with A. 0. Odimayo to discuss the Company's assumption of the BID Loan. a. This meeting occurred sometime between September 7, 1990, when G.H. assumed ownership of the company and the September 27, 1990, STSA meeting. b. Board members did not object to Toohey's representation of G.H. Processed Beef, Inc., at that time. (1) Toohey advised the board that if any conflicts arose in his representation of the Authority and the Company, he would choose to represent the Authority. 17. Toohey prepared an Agreement which was executed on 09/27/90, between the Authority and G.H. Processed Beef, Inc. /Pagewood Meat Packing Co. (Company), in which the Authority agreed to allow the Company to assume the benefits and responsibilities of the BID loan. a. The Company was required to pay all legal, administrative or other expenses incurred by the Authority as a result of the execution of the Agreement. b. An escrow account in the amount of $2,500.00, was established to pay these expenses. Toohev, 95- 073 -C2 Page 5 18. The Agreement dated 09/27/90, included a Mortgage Addendum prepared by Toohey, of the original mortgage obtained from Gartner -Harf Co., by the Authority (05/89), to be assumed by the Company. 19. Toohey represented the interests of G.H. Processed Beef, Inc. /Pagewood Meat Packing Company in correspondence to /from Northwest Pennsylvania Regional Planning and Development Commission, regarding the Mortgage Agreement. 20. Toohey and /or the Quinn Law Firm represented G.H. Processed Beef, Inc., from 08/90 through at least April, 1993. 21. By way of letter, dated October 11, 1990, Toohey provided a draft of an Addendum to the 09/27/90 Agreement between the Authority and G.H. Processed Beef, Inc., to the STSA, and advised that upon Board approval, he would forward the documents to Mr. Odimayo for his execution. a. This letter was in response to a STSA board preference for a larger escrow account. 22. Toohey and the Quinn Law Firm performed legal services for Pagewood Meat Packing Company in 1990 and 1991, on matters unrelated to the Authority. a. The majority of the legal services performed were regarding labor problems. 23. At the May 30, 1991, Authority Board meeting, Toohey in his capacity as solicitor reported to the STSA Board that Pagewood was refinancing with the United Bank for Africa and may require a letter from the Authority. 24. G.H. Processed Beef, Inc. /Pagewood Meat Packing Company closed in December, 1991. 25. Following G. H. Pagewood Beef, Inc. /Pagewood Meat Packing's decision to close, Toohey continued to provide reports to the Authority Board in 1992 and early 1993 on the status of the Company. a. Toohey continued to represent the company during this period. 26. At the March 26, 1992, Monthly meeting, the STSA Board authorized Toohey as part of his duties as solicitor to file a lien for past due sewer rental fees. a. As requested, Toohey would file the lien as soon as the information was provided to him. 27. Toohey filed a Municipal lien on behalf of the STSA in the Erie County Prothonotary's Office on April 9, 1992. a. The lien was amended by Toohey on 01/25/93, to include "G.H. Processed Beef, Inc. (owner) and Pagewood Meat Packing Company (tenant)" and listed specific index numbers for properties included at 9380 Peach Street, Waterford, PA: Toohev, 95- 073 -C2 Page 6 28. Toohey did not disclose his continued representation of Pagewood to the STSA Board at the time they authorized the filing of the lien for past -due sewer rentals fees. a. Mr. Toohey did not make further disclosures at this time because he was of the firm belief that the Board knew that his representation of Pagewood continued both because in his earlier communications he had indicated to them that the representation would be continuing in nature and because .throughout the period the STSA Board dealt with Pagewood, Mr. Toohey had access to the physical plant and to the physical property of Pagewood. From all the surrounding circumstances, Mr. Toohey felt certain that the Board knew that the firm's representation of Pagewood was a continuing one. 29. The Foreclosure was filed by Northwest Regional Planning and Development Commission and included as Defendants G.H. Processed Beef Co., Inc.; Gartner - Harf Co.; and the Erie County Industrial Development Authority. a. The Civil Action was filed in the Court of Common Pleas of Erie County, Pennsylvania, No. 6639 -1992. 30. Toohey and /or the Quinn Law Firm continued to represent the Company when Northwest initiated a foreclosure on June 5, 1992. a. Attorneys Lawrence Bolla and Michael Jan Janin of the Quinn law Firm provided legal services to the Company in regard to the foreclosure. b. On June 11, 1992, Attorney Lawrence Bolla of the Quinn Law Firm, entered his Appearance on behalf of G.H. Processed Beef Company, Inc., in the foreclosure by Northwest. 31. Toohey provided reports regarding the status of the foreclosure and amount owed to the STSA at regular meetings throughout 1992 on the following dates: a. June 25, 1992 b. July 30, 1992 c. August 27, 1992 d. September 24, 1992 e. December 17, 1992 32. On 10/29/92 the Summit Township Sewer Authority unanimously approved a motion authorizing Mr. Toohey to notify the bank of STSA's intent to foreclose and giving the bank fifteen days to respond. 33. By way of letter, dated November 12, 1992, Authority Administrative Secretary /Manager, Shirley King, provided Toohey with the total amount due the Authority for sewer rental and on the BID loan, and requested that foreclosure proceedings begin immediately as directed by the Board. Toohev, 95- 073 -C2 Page 7 34. At the November 19, 1992, meeting of the STSA, Mr. Toohey advised the board that he had not filed for foreclosure against Pagewood Beef. a. Toohey advised the board of the high cost involved. Following lengthy discussion, Mr. Toohey was authorized to attempt to have Pagewood sell off some new equipment at the plant in order to raise money to cover the BID loan. b. A motion was approved by the STSA to start foreclosure proceedings immediately against Pagewood. 35. From November 19, 1992, until December 17, 1992, Toohey took no action to foreclose against Pagewood. a. Toohey and /or his firm, the Quinn Lawfirm, was representing Pagewood at this time. 36. On December 28, 1992, Toohey authored two letters to A.O. Odimayo regarding the meat plant foreclosure. a. One letter advised Odimayo that the STSA was going to retain other counsel to commence foreclosure proceedings. (1) The letter also discussed options regarding reducing costs of the foreclosure as well as the amount of bid necessary to clear the STSA's lien. (2) Toohey noted that Odimayo had retained the Quinn lawfirm to represent Pagewood in the foreclosure by Northwest. b. The second letter acknowledged Odimayo's intention to permit the property to be foreclosed, a sale would occur within a few months, both the Planning Commission and STSA were concerned regarding obtaining sufficient funds to clear their debt and that personal property was not included in the sale. (1) This letter also stated that if the STSA is required to foreclose, they would obtain another lawfirm to do so and if Odimayo wanted representation during the foreclosure, he would have to seek other representation. c. Although neither letter was signed by Toohey, he voluntarily provided copies of these letters to Summit Township Sewer Authority in order to be sure that they were aware of what Pagewood /Odimayo was intending to do with respect to the property. 37. In January 1993, Toohey corresponded with the STSA and Odimayo /Pagewood in his capacity as both solicitor for the STSA and counsel to Odimayo /Pagewood. a. January 7, 1993: Toohey, 95- 073 -C2 Page 8 Toohey addressed withdrawal of objections to the Northwest foreclosure in a letter to Authority Chairman James Skelly. b. January 8, 1993: The STSA notified Toohey that they needed, by January 12, 1993, a complete tabulation of costs to be paid if the STSA proceeded to foreclosure. c. January 8, 1993: Letter to Odimayo from Toohey requesting on behalf of the Authority, a Certification from the insurance Company which named the Authority in the loss payee clause. d. January 12, 1993: Toohey advised the STSA of the four index numbers (lot and block) which constituted property owned by G.H. Processed Beef, Inc. 38. Attorney Michael Jan Janin of the Quinn Law Firm, notified the STSA by letter, dated January 18, 1993, that he was working with Toohey on the foreclosure filed by Northwest, and that he had filed a Praecipe withdrawing the answer filed by G.H. Processed Beef Company, Inc., so that the mortgage foreclosure action could proceed. a. Toohey was copied on the letter. b. A copy of the Praecipe was enclosed. 39. By way of letter, dated January 21, 1993, Toohey responded to questions the STSA had posed regarding guaranteeing the purchase of the G.H. property by a third party at a foreclosure sale. 40. At meetings of the STSA in January, February and March of 1993, Toohey advised the board of the status of the Pagewood foreclosure. 41. On February 12, 1993, Toohey provided the STSA with a copy of the Default Notice filed on behalf of Northwest. 42. By way of letter, dated February 12, 1993, the STSA advised Toohey that the balance on the BID loan was $252,500, and that the Authority had been using it's own funds to pay the installments on the loan of $1,250 /month. 43. Toohey advised the STSA by letter, dated February 18, 1993, that since both the Department of Commerce and the Authority had mortgages on the G.H. property, both would submit statements as to the pay -off amount on the date of foreclosure. 44. Sometime prior to February 1993, STSA Chairman A. James Skelly, discussed with Toohey, Toohey's representation of A.O. Odimayo and companies. Toohev, 95- 073 -C2 Page 9 a. Skelly believed that Toohey's representation had been limited to the transfer of the property in 1990 and was concerned that Toohey continued to represent Odimayo /Pagewood. b. Skelly subsequently contacted the Summit Township Supervisors to request their assistance in recommending outside counsel. c. Invoices from the Quinn Law Firm to the Authority reflect a conference Skelly had with Toohey regarding the foreclosure on 12/29/92. 45. Township Solicitor Joseph Messina subsequently began representing the Authority in the Pagewood matter in February, 1993. a. Township Solicitor Joseph Messina was present and provided advice to the board. 46. During the April 12, 1993, meeting of the STSA, Toohey reported to the Board that he had a conflict with the Pagewood account and that Township Solicitor Joseph Messina would be representing the STSA in the Sheriff's sale scheduled for May 14, 1993. a. He advised it has imperative that the sewer Authority have the appropriate resolutions to authorize Ch. Skelly and Atty. Messina to attend and bid on behalf of the sewer Authority. b. Toohey did not provide the Authority with a written disclosure as to the conflict. c. No other discussion of the nature of Toohey's conflict with the Pagewood account is recorded. 47. Toohey submitted a final bill for services rendered in regard to the Pagewood matter, along with a cover letter dated March 22, 1993, to the Authority, to be added to the final amount to be paid to the Authority by whomever purchases the building. The invoice reflects the following: Invoice #: 87260 Invoice date: 03/15/93 Invoice total: $159.90 48. Toohey's firm, the Quinn Law Firm invoiced Pagewood Meat Packing Company for legal services between September 5, 1990, and October 30, 1990, in the amount of $3,408.95 for legal services including: Labor problems; OSHA problem; incorporation; registration to do business in other states; unfair labor practice; pond closure; lease from G.H. Processed Beef, Inc.; Union Meats employee problem; assumption of BID loan. 49. The Quinn Law Firm invoiced Pagewood Meat Packing Company on 10/16/90 and 11/16/90 for legal services related to the agreement with the STSA to assume the BID loan and the addendum totaling $270.45. Toohev, 95- 073 -C2 Page 10 50. Pagewood Meat Packing Company Accounts Payable Ledgers indicate payments to the Quinn Law Firm in the amount of $20,495.46 from April through December 1991. 51. Some invoices from the Quinn Law Firm to the STSA reflecting services provided in relation to the Pagewood Meat Packing Company file, were paid by the STSA from the Pagewood Escrow Account. a. The escrow account was established as a requirement of the 09/27/90 Agreement between the Authority and G.H. Processed Beef, Inc. b. The account was closed by official action of the Authority Board at the 12/19/92 meeting. c. Not all invoices were paid from the escrow account. 52. Quinn Law Firm invoices relating to the Pagewood Meat Packing Company file that were paid from the Authority Operating Account included the following: Invoice #: 63703 Invoice date: 09/12/90 Invoice total: $45.00 Invoice #: 63823 Invoice date: 09/14/90 Invoice total: $22.50 Invoice #: 79358 Invoice date: 05/07/92 Invoice total: $60.05 Invoice #: 85649 Invoice date: 01/13/93 Invoice total: $38.26 Invoice ' #: 86725 Invoice date: 02/17/93 Invoice total: $1,1 16.90 * No cost breakdown for individual billings. Invoice #: 88876 Invoice date: 05/14/93 Invoice total: $45.00 53. The Pagewood Escrow Account records indicate that the following Quinn Law Firm invoices were paid from that account: Invoice #: 64576 Invoice date: 10/16/90 Invoice total: $180.00 Invoice #: 65431 Invoice date: 11/16/90 Invoice total: $22.50 Toohev, 95- 073 -C2 Page 11 III. DISCUSSION: At all times relevant to this matter, the Respondent, James Toohey, hereinafter Toohey, has been a public official /employee subject to the provisions of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, seg. The issue before us is whether Toohey, as Solicitor for the Summit Township Sewer Authority (STSA), Erie County, violated Section 3(a) of the Ethics Law (Act 9 of 1989) as to the allegation that he used the authority of his office in an effort to obtain a private pecuniary benefit for himself or his law firm when he participated in Authority actions relating to an Authority loan and the payment of sewer rental fees by a business for which he or his firm served as private counsel. Pursuant to Section 3(a) of the Ethics Law quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 as follows: Section 2. Definitions 65 P.S. §402. Invoice #: 75819 Invoice date: 12/11/91 Invoice total: $1 12.50 Invoice #: 76629 Invoice date: 01/16/92 Invoice total: $22.50 "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. Having noted the issues and applicable law, we shall now summarize the relevant facts. The Summit Township Sewer Authority (STSA) operates in Summit Township on funds received from sewer rental rates and tap -in fees. James F. Toohey (Toohey) of the law firm of Quinn, Buseck, Leemhuis, Toohey & Kroto, Inc. (Firm), is the Solicitor for STSA. Toohev, 95- 073 -C2 Page 12 On July 8, 1986, STSA entered into an agreement with Gartner -Harf Company (G.H.) to construct a sanitary line to its meat processing plant for $460,000 which was increased to $510,000 in a supplemental agreement. Funding for the project came in part from a $250,000 loan from the Department of Commerce as to which G.H. guaranteed repayment over a twenty year period. In the spring of 1990, G.H. owners entered into negotiations to sell the company to A.O. Odimayo and executed an agreement of sale on August 27, 1990. In July, 1980, at an STSA meeting, Toohey as Solicitor suggested that either G.H. should pay up the account or STSA should foreclose. Toohey as Solicitor contacted the Pennsylvania Department of Commerce regarding the status of the monies owed to STSA. Toohey began representing A.O. Odimayo /G.H. Processed Beef, Inc. /Pagewood Meat Packing Company in a private capacity. In September, Toohey as attorney for G.H. Processed Beef, Inc. (Company), prepared an asset purchase agreement between G.H. and the Company. When the Company opened the plant, it did business as Pagewood Meat Packing Company (PMPC) which is a wholly owned subsidiary of the Company. The incorporation papers of PMPC identified Odimayo as the CEO /Treasurer. The STSA Board Members and Toohey met with Odimayo to discuss the money owed to STSA from the Commerce loan. At that meeting, Toohey disclosed his representation of the Company to the STSA Board Members who raised no objection at that time as to his representation. Toohey prepared an agreement between STSA and the Company whereby STSA agreed to allow the Company to assume the benefits and responsibilities of the loan. Subsequently Toohey prepared a draft of an addendum to that agreement between STSA and the Company. At a May 30, 1991 STSA Board meeting, Toohey, in his capacity as Solicitor, reported to the Board that PMPC was refinancing and that it might require a letter from STSA. However, PMPC closed operations in December, 1991 but Toohey continued to provide reports to the STSA Board in 1992 and 1993 as to the status of the Company. In March, 1992, the STSA Board authorized Toohey as Solicitor to file a lien for past due sewer rentals. Toohey filed such a municipal lien in the Erie County Prothonotary's Office on April 9, 1992. The lien was subsequently amended by Toohey to include the Company as well as PMPC. Toohey did not disclose his continued representation of PMPC to the STSA Board at the time it authorized him to file a lien for the past due sewer rentals. The Northwest Regional Planning and Development Commission (Commission) filed foreclosure against the Company and others during the time Toohey /the Firm continued to represent the Company. Toohey as STSA Solicitor provided status reports of the foreclosure and amounts owed to the STSA Board from June through December of 1992. At an October 29, 1992 meeting, the STSA Board unanimously enacted a motion to authorize Toohey to give the requisite notice of its intent to foreclose. In November, the STSA Manager provided Toohey with the total amount due to STSA from the sewer rental and loan and requested that foreclosure proceedings begin immediately as directed by the STSA Board. However, at the November 19, 1992 STSA Board meeting, Toohey advised that he had not filed foreclosure against PMPC and noted the high cost involved as to such proceedings. At that same meeting, the STSA Board approved a motion to immediately institute foreclosure proceedings against PMPC. However, Toohey took no action until December 17, 1992 which was at the time when Toohey or the Firm was representing PMPC. Toohev, 95- 073 -C2 Page 13 By letter of December 28, 1992, Toohey wrote two letters to Odimayo regarding the foreclosure proceedings. In the first letter, Toohey advised that the STSA was going to retain other counsel to commence foreclosure proceedings and that his law firm was representing PMPC in the foreclosure by the Commission. In the second letter, Toohey acknowledged Odimayo's intent to permit the property to be foreclosed with a sale occurring in a few months as well as the concerns of STSA and the Commission as to the sufficiency of funds. Neither of these letters was signed by Toohey but he provided copies to the STSA. In January, 1993, there was a series of correspondence by Toohey to STSA and Odimayo /PMPC in his capacity as both Solicitor and private counsel which are outlined in Fact Finding 37. By letter of January 18, 1993, Attorney Janin of the Firm advised that he was working with Toohey on the foreclosure filed by Northwest. In February and March of 1993, Toohey advised the STSA Board regarding the status of the PMPC foreclosure. By letter of February 12, 1993, the STSA Board informed Toohey that it was using its own funds to pay off installments as to the loan. Toohey advised the STSA Board that since both the Department of Commerce and STSA had mortgages on the property, both should submit statements as to pay off amounts. • The Chairman of the STSA Board, James Skelly, had discussions with Toohey regarding his representation of Odimayo and the Company. Skelly originally believed that Toohey's representation had been limited to merely the transfer of the property in 1990. When Skelly learned of Toohey's continued representation of Odimayo /PMPC, he had concerns about Toohey's representation of STSA. Skelly contacted the Summit Township Supervisors to request their assistance in recommending an outside counsel, after which Township Solicitor Messina began representing STSA in the PMPC matter from February, 1993 forward. Thereafter, during an April 12, 1993 STSA Board meeting, Toohey stated that he had a conflict with the PMPC account and that Township Solicitor Messina would be representing STSA in the Sheriff's sale. Toohey never provided any written disclosure to STSA as to this conflict. In applying the provisions of Section 3(a) of Act 9 of 1989 to the instant matter, we are constrained to find no violation on the basis that there was not a use of authority of office. We are mindful that in reviewing the conduct of Toohey, we cannot review conduct which would be considered the practice of law in that such conduct is within the exclusive jurisdiction of the Supreme Court of Pennsylvania and is subject to review by its Disciplinary Board. Maunus and Thau v. SEC, 518 Pa. 592, 544 A.2d 1324 (1988). To the extent a conflict of interest exists on these facts, it is a conflict under the Rules of Professional Conduct rather than the Ethics Law. To the extent Toohey has acted unethically, it is for the disciplinary Board, rather than this Commission, to so find. When we set aside, as we must, the conduct of Toohey which is governed by the Rules of Professional Conduct, the remaining conduct that we are able to review does not establish the requisite element of a use of authority of office. Without the requisite use of authority of office, we are required to find no violation of Section 3(a) of Act 9 of 1989. McGuire and Marchitello v. SEC, 657 A.2d 1346 (1995). Lastly, we note that the parties have filed a Stipulation of Findings and Consent Agreement which sets forth a proposed resolution of the allegations. We believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis. As noted above, we do not and cannot address the implications of Toohey's conduct as it relates to the practice of law which is a matter for the Disciplinary Board of the Pennsylvania Supreme Court. Toohev, 95- 073 -C2 Page 14 IV. CONCLUSIONS OF LAW: 1. James Toohey, as Solicitor for the Summit Township Sewer Authority, is a public official /public employee subject to the provisions of Act 9 of 1989. 2. Toohey did not violate Section 3(a) of Act 9 of 1989 in that the record does not establish a use of the authority of his office in an effort to obtain a private pecuniary benefit for himself or his law firm when he participated in Authority actions relating to an Authority loan and the payment of sewer rental fees by a business for which he or his firm served as private counsel. In Re: James Toohey ORDER NO. 1048 File Docket: 95- 073 -C2 Date Decided: 5/29/97 Date Mailed: 6/1 1 /97 1. James Toohey, as Solicitor for the Summit Township Sewer Authority, did not violate Section 3(a) of Act 9 of 1989 in that the record does not establish a use of the authority of his office in an effort to obtain a private pecuniary benefit for himself or his law firm when he participated in Authority actions relating to an Authority loan and the payment of sewer rental fees by a business for which he or his firm served as private counsel. 2. We do not and cannot address the implications of Toohey's conduct as it relates to the practice of law which is a matter for the Disciplinary Board of the Pennsylvania Supreme Court. BY THE COMMISSION, 66 Q'�12�pirU 6 aUe DANEEN E. REESE, CHAIR