HomeMy WebLinkAbout79-060 BeaserTO:
RE:
FACTS!
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION
October 17, 1979
Lawrence J. Beaser
Blank, Rome, Comisky & McCauley
Four Penn Center Plaza
Philadelphia, PA 19103
Definition of a governmental body of a member of
the Law Deparment of the City of Philadelphia who
represented the Zoning Board
On August 7, 1979, Lawrence Beaser wrote the
Commission asking for determination as to the extent
Steven B. Berger, Esquire, a former assistant city
solicitor of the City of Philadelphia, may practice
before agencies and counties of the City and County of
Philadelphia.
1. Is Mr. Berger a "former official or public
employee" as these terms are used in §3(e) of
the Act?
2. What restrictions, if any, are placed on Mr.
Berger's actions by the Act's provisions?
Specifically,
79 -060
Mr. Beaser advised that for six months before
June 29, 1979, the date of Mr. Berger's resignation, he
was assigned to the Litigation Division of the Law
Department. In that division he defended tort claims
at the arbitration level in the Court of Common Pleas.
Mr. Berger's recommendations relating to the settlement
of claims were reviewed by a deputy city solicitor who
made the actual decision.
Prior to employment by the Litigation Division,
Mr. Berger represented the Zoning Board of Adjustment
in the Enforcement Division of the Law Department. His
settlement authority was likewise subject to the
approval of the deputy solicitor of that division.
Mr. Beaser asked the following questions of the
Commission:
Lawrence J. Beaser
October 17, 1979
page 2 of 4
DISCUSSION:
(a) May Mr. Berger represent persons
before City of Philadelphia officials,
departments, boards and commissions
other than the Law Department?
(b) May Mr. Berger represent persons in
the Courts of the Commonwealth or before
boards or com ;._ ns of the City of
Philadelphia _ opposing counsel are
attorneys e• .d by the Law Department?
The threshhold issue is whether Mr. Berger is a
"former public official or public employee" as the term
is used in Section 3(e). If he is regulated by Act
170, what is the governmental body with which he was
associated as set forth in Section 3(e)?
Mr. Berger was given the title Assistant City
Solicitor. Presumably he has a Doctor of Law Degree,
so it is difficult to argue that he performs merely
ministerial tasks. The term "public employee" refers
to "any individual employed by the Commonwealth or a
political subdivision who is responsible for taking or
recommending official action of a nonministerial nature
with regard to: ...(3) planning or zoning...." Mr.
Berger is therefore a "public official or public employee"
as defined in Section 3(e).
Second, was the governmental body with which he
was associated the Law Department, or some other agency?
We find that an attorney who represents principally a
particular agency, such as a Zoning Board of Adjustment,
is associated with that particular governmental body.
To rule otherwise would permit every solicitor of every
governmental agency to call himself or herself a Law
Department and be exempt from the Act. Rendell,
Ethics Opinion 1979 -7, is clearly distinguishable.
Rendell does not represent any agency. He represents
the citizens of the City and County of Philadelphia and
the citizens of the Commonwealth in the enforcement of
its laws.
Representing a city in the defense of tort claims
is another matter. Such representation was performed
exclusively in the Courts. There is no Philadelphia
administrative agency which handles tort claims initially
prior to litigation, although presumably claims might
be made prior to the actual commencement of a suit.
Lawrence J. Beaser
October 17, 1979
page 3 of 4
Therefore, we conclude that Mr. Berger may not
represent any party before the Zoning Board of Adjust-
ment until one year after he has left the Law Department.
Act 170 does not bar representation of any individual
in tort claims against the City of Philadelphia even
though Mr. Berger may be negotiating out of Court with
various officials Mr. Berger was previously associated
with, Rendell, 1979 -7, Adler, 1979 -43.
Mr. Berger was also associated with the Law
Department, and as such, may not participate in nego-
tiating with any Law Department attorneys in any pre -
suit negotiation. Once suit has been initiated, where
there is administrative litigation pending before any
board or commission of the City of Philadelphia, Mr.
Berger may negotiate with Law Department attorneys.
Mr. Berger would, of course, be prohibited from
participating in any matter with which he dealt as
Assistant City Solicitor. The Commission has already
held that other members of the law firm are not barred
from such negotiation.
Pursuant to Section 7(9)(i), this opinion 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.
CONCLU S ION :
Mr. Berger is a "public employee" as that term is
used in Section 3(e) of the Act, because, as a member
of the Law Department he was responsible for taking or
recommending official action of a nonministerial nature
with regard to planning or zoning.
Mr. Berger may not represent any person before the
Zoning Board of Adjustment within one year after he has
left the Law Department.
4
Lawrence J. Beaser
October 17, 1979
page 4 of 4
He may not represent any person in the pre -suit or
pre - administrative litigation stage where such
representation involves negotiation with the Law
Department within one year after he has left the Law
Department.
Mr. Berger may represent persons in the Courts of
the Commonwealth or boards or commissions of the City
of Philadelphia, other than the Zoning Board of
Adjustment, where opposing counsel are attorneys
employed by the Law Department.
PAUL J . �
Chairm
(SEAL)