Loading...
HomeMy WebLinkAbout81-001 KuryFranklin L. Kury, Esquire 800 N. Fourth Street Sunbury, PA 17801 I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 January 27, 1981 OPINION OF THE COMMISSION RE: Section 3(e) - Restrictions, Representation II. Factual Basis for Determination: 81 -001 Dear Mr. Kury: This responds to your request that the full Commission review the Advice of Counsel previously issued to you (80 -741). This Advice is incorporated into this proceeding. As we perceive your questions, you seek review of the Advice of Counsel only as to two areas: A. Can the Public Utilities Commission (PUC) be consi- dered within the definition of the "governmental body" with which you were associated? B. If so, may you appear and represent a client before the PUC in your capacity as a lawyer before the PUC and may the Ethics Act regulate your conduct as a lawyer, before the PUC? You are a former member of the Senate of the Commonwealth of Pennsylvania whose term of office expired November 30, 1980. As a member of the Senate you served as Chairman of the standing Committee on Consumer Affairs. This Committee's main area of concern is the PUC. You are a member of the bar of the Supreme Court of Pennsylvania and you intend to resume the practice of law on a full -time basis. This practice may or may not include contact with state agencies. III. Applicable Law: Section 3(e) of the Ethics Act must be reviewed. This provides that: Franklin L. Kury, Esquire January 27, 1981 . Page 2 The term "governmental body" is defined in the Act as follows: IV. Discussion: "No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body." 65 P.S. 403(e). "Any department, authority, commission, committee, council board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative, or Judicial Branch of the State or a political subdivision thereof. 65 P.S. 401. Initially, we note that you do not dispute that portion of Advice 80 -741 which found that your "governmental body" included the Senate and applied various restrictions to you as a "former public official" vis -a -vis the Senate in accordance with Section 3(e) of the Ethics Act. The issue you raise initially, is whether the PUC falls within the scope and definition of the phrase "governmental body with which you were associated." As we ruled in Seltzer, 80 -044 a public official may be deemed to be "associated with" more than one "governmental body." Essentially, the reasoning in Seltzer was that the Legislature in Section 3(e) must be deemed to have intended to eliminate circumstances in which a former public official could re -exert influence over any governmental body with which he was " associated." The term "governmental body" could, therefore, be logically found to include any department, authority, commis- sion, etc. with which the former employee was "associated." Further, the term "associated" need not and should not be strictly limited to the body where the public official might be technically "employed." This reasoning leads to the conclusion that a, former public official who had served in the Legislature could be deemed to be "associated with" the Senate or the House, as appropriate; the non - legislative board, commission, authority, etc. on which he may have served as ex officio or appointed member (see additional Opinion, 80 -047); and the department, authority, Commission, etc. which was directly related to the standing Committee of the Legislature which the particular Representative or Senator chaired. See Geese , particular and compare Goebel, 80 -045. We are not persua e to depart from this reasoning in general or in your case. Franklin L. Kury, Esquire January 27, 1981 Page 3 Consequently, in your case we expressly conclude that the "governmental body" with which you were "associated" includes the PUC by virtue of the fact that you chaired the Senate Consumer Affairs Committee. Your authority as Chairman of this Committee is easily identifiable. You are undoubtedly perceived to have had significant contact and influence with the PUC. As Chairman you were responsible for assigning bills vital to the PUC to sub - committees, ad -hoc committees, etc. You set the agenda for the Committee, including calling and conducting full public hearings on legislation. You would chair any investiga- tive hearings relating to the PUC and legislation affecting the PUC. This association with the PUC is sufficient to us, under the law, to warrant application of the prohibition against representation to you vis -a -vis the PUC. Next, you ask whether the term "represent" if applied to the PUC, as determined above, includes appearing before the PUC as an attorney for a particular client and whether the Ethics Act can constitutionally be applied to you as a lawyer. We are fully aware of the cases decided most recently in regard to the application of Sections 4 and 5 of the Ethics Act to solicitors and judges. See Kremer v. State Ethics Commission, Pa. Cmwlth. , A.2d (No. 271 C.D. 1980, issued January 20, 1981) and Ballou v. State Ethics Commission, Pa. Cmwlth. A.2d (No. 1013 C.D. 1980, issued January 22, 1981). — We also recognize the ruling of the Pa. Supreme Court in Wajert v. State Ethics Commission, Pa. , 420 A.2d 439 (1980) which dealt with the application of Section 3(e) of the Ethics Act to a former judge appearing in a Court of law and found that application unconstitutional. We recognize that we are bound to follow the holdings of these decisions. The holdings of these decisions, however, are narrow and clear. These holdings may be summarized as follows: (1) Wajert held that Section 3(e) of the Ethics Act may not applied to a former judge to preclude him from appearing as a lawyer before the Court of Common Pleas. Footnote 5 in Wajert specifically reserved for future ruling of the application of Section 3(e) to all attorneys; (2) Kremer held that Section 4(d) and 5 of the Ethics Act may not constitutionally be applied to judges. Thus, the financial disclosure provisions of the Ethics Act may not be applied to judges; (3) Ballou held that solicitors, as attorneys, would likewise be exempt from the financial disclosure requirements. None of these cases expressly addresses the question raised here, i.e. whether the provisions of Section 3(e) of the Ethics Act may be applied to prohibit an attorney from practi- Franklin L. Kury, Esquire January 27, 1981 . Page 4 cing law before an administrative agency such as the PUC. We realize that the direction and dictum of these decisions arguably makes the answer to this question apparent. Neverthe- less, we believe that to extend these rulings to answer this question in the negative would amount to the Commission declaring the provisions of Section 3(e) of the Ethics Act unconstitutional as applied to a situation which was not addressed in any of these Court rulings. We decline to do so. Therefore, we conclude that the case of an attorney practi- cing law before the PUC is not identical to that of the attorney, former judge - Wajert practicing before the Court of Common Pleas. We find no other specific precedent that compels us to find these situations identical and since the courts have only spoken to financial disclosure provisions of the Ethics Act otherwise. We only find that precise precedent does not compel us to conclude that appearing and representing another before the PUC is, as to all matters and forums, an activity regulated solely and exclusively by the Supreme Court. The conclusion remains: Representing any person before the PUC is prohibited for the one -year period after you leave public service. Accordingly, the Advice previously issued is clarified and affirmed as discussed herein. V. Conclusion: As a former State Senator you are a "former public official" and you must comply with Section 3(e) of the Ethics Act. Section 3(e) prohibits you from representing any person, with or without compensation, on any matter before the governmental body with which you were associated for a period of one year following the termination of your service with the Senate. The "governmental body " with which you were associated includes the Senate where you served as Chairman of the Consumer Affairs Committee and the PUC as discussed above, by virtue of your role as Chairman. For the one -year period after your term expired you may not represent any person before the Senate or the PUC. For this period, you may not: 1. personally appear before these bodies on specific cases, matters, or proceedings. We reiterate our prior rulings that members of your firm are not subject to prohibitions applicable to you. 2. lobby before the Senate or the PUC or otherwise attempt to influence these bodies; 3. negotiate with the Senate or PUC on contracts, for example, except that you may administer such a contract if awarded. Franklin L. Kury, Esquire January 27, 1981 Page 5 Of course, as a former public official you must, as previ- ously advised, comply with Section 4(a) of the Act which requires that you file a Financial Interest Statement no later than May 1, 1981. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commis- sion, and evidence of good faith conduct in any 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. PJS /rdp PAUL J. SMITH Chairman UPDATE: The Commonwealth Court (435 A.2d 940) ruled that the former Senator was not to be considered "associated with" the Public Utility Commission by virtue of his chairmanship of the Senate Consumer Affairs Committee. But see Update 79 -025 as to his ability to practice law within the first year after leaving the Senate. UPDATE: A Commonwealth Court ruling (434 A.2d 1327) on similiar factual circumstances should be reviewed. Former Commonwealth employees or officials who are attorneys may practice law before the governmental body with which he /she has been associated regardless of the Section 3(e) (one year) prohibition. The court ruling did not specificially address this particular opinion, but the factual circumstances may be applied to it. This Common- wealth Court opinion was affirmed, without further opinion by the Pennsylvania Supreme Court.