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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)