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HomeMy WebLinkAbout82-007 MirinSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 April 19, 1982 OPINION OF THE COMMISSION Mr. Robert S. Mirin 82 -007 Baskin and Sears, P.C. P.O. Box 1150 Harrisburg, PA 17108 RE: Former PHRC General Counsel - Section 3(e) - Exemption Dear Mr. Mirin: I. Issue: You have written the Commission in regard to the following question: Given the dicision of the Commonwealth Court in Pa. PUC Bar Association v. Thornburgh, Pa..Cmwlth. , 434 A.2d 1327 (1981), and pending its disposition on appeal to the Supreme Court, will the State Ethics Commission grant you, as a former General Counsel to the Pennsylvania Human Relations Commission (PHRC) clearance to appear before the PHRC even though the one -year period of limitation set by the Ethics Act has not yet expired? II. Factual Basis for Determination: You have informed us that you served as General Counsel to the Pennsylvania Human Relations Commission from May, 1978 until December, 1981, at which time your Commonwealth employment ended. Subsequently, you have associated with the private law firm of Baskin and Sears in Harrisburg, Pennsylvania. Because of your experience in the areas of labor law and civil rights litigation, you desire to represent a client before the PHRC, even though less than one year has passed since you left that agency. Correspondence between the PHRC and you indicates that the PHRC will condition allowing your appearance before them on your receiving "clearance" from the Ethics Commission. You note that the instant case in which you wish to participate before the PHRC was filed after you had left the PHRC. You have had no prior dealings with any of the parties to the action. You believe that your representing the Robert S. Mirin April 19, 1982 Page 2 complainant before the PHRC is appropriate and consistent under the Canons of legal Ethics. Moreover, you propose that clearance by the Ethics Commission would be consistent with the decision of the Commonwealth Court in Pa. PUC Bar Association, supra, currently on appeal to the Supreme Court. Finally, you contend that the absolute one - year bar constitutes an economic hardship and deprivation of property without due process of law. III. Applicable Law: Section 3(e) of the Ethics Act. No former official or public employee shall represent a person, with or without compen- sation, 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). Section 1.1 of the Pennsylvania Code, Chapter 51. Persons in the positions listed below are generally considered public employees.... (c) Staff attorneys engaged in represent- ing the department, agency, or other governmental bodies before the public. 51 PA Code §1.1 Rule 1736(b) of the Pennsylvania Rules of Appellate Procedure. IV. Discussion: (b) Supersedeas automatic. Unless otherwise ordered pursuant to this chapter the taking of an appeal by any party specified in subdivision (a) of this rule shall operate as a supersedeas in favor of such party. Pa. R.A.P. 1736. Initially, the Ethics Commission notes that, as a statutory entity, its jurisdiction and its power is strictly limited to the authority granted it in 65 P.S. §401 et seq. Thus, it has no authority to interpret and/or enforce the provisions of other codes such as the Canons of Ethics, and does not address the effect of those Canons on your conduct. On September 28, 1981, the Commonwealth Court of Pennsylvania granted summary judgment in the case of PUC Bar Association v. Thornburgh, supra. The Court found Section 3(e) of the Ethics Act unconstitutional as applied to attorneys. The Robert S. Mirin April 19, 1982 Page 3 Respondents immediately appealed the decision to the Supreme Court of Pennsylvania. Pursuant to Pa. R.A.P. 1736(b), the appeal resulted in an automatic supersedeas of the Commonwealth CourtL.s decision pending a determination by the Supreme Court. On October 20, 1981, the Commonwealth Court denied. the Petitioners' application for relief from the automatic supersedeas provisions of RAP 1736(b). Thus, the supersedeas continues, preserving the status quo prior to the Commonwealth Court ruling pending appeal. Status quo in the instant case means that Commission regulations and Opinions regarding the applicability of the Ethics Act, Section 3(e), to those attorneys who were or are public officials or public employees remain in effect. Compare Ballou v. State Ethics Commission, ,Pa. , 436 A.2d 186 (1981). Prior to the decision by the Commonwealth Court, the Commission held that Counsel to Commonwealth agencies were public employees subject to the Ethics Act. See Schwartz, 79 -025; Stapleton, 79 -068; Morris, 80 -039. These Opinions are not altered by the Ballou ruling which exempted part -time municipal solicitors from the definition. of "public official" or "public employee ". The Commission, therefore, continues this interpretation and finds that you were a public employee in your position as full -time General Counsel to the Pennsylvania Human Relations Commission. As a former public employee, you must comply with the restrictions set forth in Section 3(e) of the Act. The Commission has applied and interpreted Section 3(e) so as to prevent the activities of a former public employee from presenting even the appearance of a conflict of interest. Nevertheless, the Commission has realistically recognized that certain activities by former employees do not constitute that representation which the Act restricts. Generally, the Ethics Commission has held and continues to hold that Section 3(e). 1. Prohibits personal appearance before the governmental body with which the former public employee was associated for the one -year period. Adler, 79- 043. In your case, the applicable governmental body is the Pennsylvania Human Relations Commission. 2. Prohibits attempts by the former public employee to influence the governmental body with which he was associated. Cutt, 79 -023; Kilareski, 80 -054. 3. Prohibits you as a former public employee from participating before the PHRC in any case over which you had supervision, direct involvement or responsibility while with the governmental body (PHRC) for the one -year period. Robert S. Mirin April 19, 1982 Page 4 4. Does not bar members of a former public employee or official's firm or new employer from representing clients before the governmental body with whom the former public employee /official was associated, Berger, 79 -060. 5. Does not prohibit the former public employee /official from making general informational inquiries on matters which are subject to inquiry by the public. Cavill, 79 -041. 6. Does not bar the former public employee from generally utilizing the knowledge and expertise gained from his or her tenure as a public employee except as set forth above. 7. Does not prohibit appearance by the former public employee in a third forum, such as state or federal court. Rendell, 79 -007. The Commission believes that applying these restrictions and limitations to your situation is a reasonable and necessary way to achieve the primary purpose of the Act -- ensuring the people of the State that public employees present neither a conflict nor the appearance of a conflict with the public trust. In so determining, the Commission has considered the ramifications of upholding the applicability of Section 3(e) to you and of granting you an exemption from it, should the Supreme Court affirm or reverse the decision of the Commonwealth Court in the PUC case. By upholding the one -year representation bar, the Commission would ensure the public trust is protected, no matter how the Supreme Court decides. Significantly, the Ethics Act would not restrict another member of the firm with which you are now associated from appearing before the Human Relations Commission. Also, as long as you make no personal appearance before that Commission and do not affix your name to any document that would be part of the represen- tation, you would still be able to advise, recommend, parti- cipate, etc. in your fellow associate's preparation of the case before the PHRC. Kilareski, 80 -054. Russell, 80 -048. The assistance, of course would still remain subject to limitations on your using confidential information acquired during your tenure as General Counsel. See Section 3(a) of the Ethics Act. In this way, you would not violate the public trust and your firm's client would receive competent assistance and representation, regardless of the Supreme Court's disposition of the PUC appeal. Robert S. Mirin April 19, 1982 r -age 5 Should the Ethics Commission grant your request for exemption from the Section 3(e) representation restriction, however, a subsequent reversal of the PUC decision by the Supreme Court would present a situation incapable of remedy. Suppose the Ethics Commission allows you in this instance to appear personally before the PHRC prior to the expiration of the one -year period. Consider then the implication of such a decision should the Supreme Court reverse the PUC decision and hold that Section 3(e) may constitutionally be applied to former agency Counsel. The damage which the Act seeks to prevent via Section 3(e) - an apparent or actual conflict of interest - will have already occurred because your representation will have preceded the Supreme Court's reversing decision. Furthermore, because of the nature of the damage involved, no remedy can be applied retroactively to "erase" the actual or apparent conflict. Thus, the Commission believes that the better response is to deny your request for clearance and to uphold provisions of Section 3(e) as they apply to you, as a former public employee. To rule otherwise would be to declare this Section of the Law unconstitutional even though Court Opinions to this effect are currently on appeal and thus, superseded. An agency may not and should not take this step without currently applicable, binding and final judicial direction. V. Conclusion: As the former General Counsel to the Pennsylvania Human Relations Commission, you are a former public employee subject to the restrictions of Section 3(e) of the Ethics Act. The Commission recognizes the automatic supersedeas in effect pending the Supreme Court's disposition of the appeal in PUC Bar Association v. Thornburgh and holds that Section 3(e) is pending this appeal, applicable to attorneys who have been full -time public employees as defined by the Ethics Act. The Commission believes that the interests which the Ethics Act seeks to protect are best safeguarded, in this period prior to the Supreme Court's pronouncement on this issue, by denying your request for exemption from the restrictions of Section 3(e). Thus, you must not represent a person before the PHRC for one year after the date your tenure as a public official ended. The prohibitions and limitations outlined above apply to you without exception for this one -year period. Robert S. Mirin April 19, 1982 Page 6 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 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 /na c Co . 0% wh�c ''we w h . `veal aJ G,, o ` Qfes � r eG f G /G ° 4ls p oi � ' o��s 904 e p � �s dr J hould be reviewed. Former governmental body with The court ruling did not 'd to it. This Common - e Court.