HomeMy WebLinkAbout84-005 Keener-FarleyLawrence E. Keener- Farley, Esquire
36 Mallard Court
Mechanicsburg, Pennsylvania 17055
II. Factual Basis for Determination:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
February 24, 1984
84 -005
RE: Request No. 83 -147, Representation, Public Utility Commission
Dear Mr. Keener - Farley:
I. Issue:
You ask whether, as an employee of the Pennsylvania Public Utility
Commission, hereinafter the Commission or PUC, you may, consistent with the
Ethics Act and our regulations, represent a fellow - employee in a proceeding
before another state agency.
You indicate that you are currently employed in a Civil Service
classification of Legal Assistant II with the PUC. You are assigned to the
Bureau of Safety and Compliance, hereinafter the Bureau, and your duties
involve reviewing investigations performed by PUC enforcement officers and
determining if the PUC law or its regulations have been violated. You have
provided us with a job description which is included herein by reference and
an organizational chart to which we have made reference. Your job description
indicates that your work is performed "independently with little supervision"
and you have the following responsibilities:
1. Reviewing road- checks as submitted by PUC enforcement officers to
determine whether there are any violations of the PUC law or motor
carrier rules and regulations. This includes analyzing the
certificates of common carriers, permits for contract carriers, and
the licenses of brokers as well as analyzing the movements by
certificated carriers to determine whether they are in compliance
with the PUC rules and regulations and law and are within the scope
of their certificate. Likewise, the movements of non - certificated
carriers are analyzed to determine whether they are allowed by
statutory exemptions.
Lawrence E. Keener - Farley, Esquire February 24, 1984
Page 2
2. Reviewing documents attached to road- checks such as leases bills of
lading, and officers reports to determine violations. Road- checks
where no violations are found are sent to be filed, and those where
alleged violations are uncovered are prepared for Commission
complaint, rules to show cause, summary prosecutions, or letters of
warning. The type of prosecution is dependent upon the seriousness
of the offense and the carrier's past history of compliance with the
PUC law and regulations. In this process you prepare a brief
written report which is reviewed by the Administrative Supervisor of
the Bureau who decides if the recommended action should be taken.
Then these recommendations are approved for prosecution and
forwarded to the technical writers within the PUC or to the
enforcement officers for appropriate actions.
3. Where no clear violations exist, you may undertake a review of the
carrier's files, especially testimony relating to the scope of the
certificate; a return to the enforcement officer with a request for
additional investigation; conferences with the Administrative
Supervisor or assistant counsel; research of a legal nature;
consultation with other PUC bureaus or contact with federal and
state agencies including the Department of State as to corporate
status, the Department of Transportation as to vehicle registration,
the Department of Education with regard to school bus contracts and
the Interstate Commerce Commission with respect to interstate
authority.
4. With respect to Philadelphia Taxi Cab survey and service, you are
also responsible for reviewing and receiving Philadelphia Taxi Cab
investigative reports which consist of interview sheets,
road -- checks, safety - checks, copies of vehicle titles, registrations,
and insurance policies, as received from the Philadelphia Assistant
Counsel to the PUC. In this area you analyze reports using the
Philadelphia Tax Review Sheet to determine whether a vehicle is
properly titled, insured, and recorded with the PUC and to determine
whether the vehicle has been properly marked and equipped with a
meter and radio and is in safe operating condition. With respect to
this process you can take the following action, depending on the
results of your analysis of this information: If the information is
complete and correct file the report in the office file; if the
information is incomplete or internally inconsistent, write a letter
to the Taxi Cab Company requesting information or a sworn statement
that the violation has been corrected; if the information presents
unusual problems you are to discuss these with the Philadelphia
Assistant Counsel and follow his instructions on the action to be
taken. You are also required to randomly select and verify the
accuracy of the certificate holder's monthly totals of the trips of
a vehicle in assigned zones to calculate the precentage of zone
compliance for each month and to prepare statistical analysis of
compliance for reporting taxi cabs, showing the number and
percentage of trips within the assigned zones.
Lawrence E. Keener - Farley, Esquire February 24, 1984
Page 3
Organizationally, you report to the Administrative Supervisor within the
technical review section who in turn reports to the Bureau Director, and the
Bureau Director reports to the Director of Operations of the PUC who deals
directly with the Public Utility Commission members. It should be noted that
the PUC has determined that your position is to be considered within the
definition of "public employee" in the State Ethics Act and that you have been
required to and have been filing a Statement of Financial Interests pursuant
to the State Ethics Act while serving in your current position.
You also have been admitted to practice before the Supreme Court of
Pennsylvania as of November 17, 1983, and you are currently in the process of
developing a private practice on a part -time basis. A co- employee (Clerk II)
employed by the PUC within the Bureau has, as a result of your status as an
attorney, recently asked you to file a complaint with the Pennsylvania Human
Relations Commission PHRC) on her behalf. This individual, Delores Boddy,
wishes to file a compliant with the PHRC, against her employer, the PUC,
alleging age, race, and sex descrimination. This complaint was filed and
docketed with the PHRC as of October 26, 1983. You handle this case without
charge and you mailed your appearance to the PHRC with respect to this charge
on November 28, 1983. On November 30, 1983, you informed the PUC Personnel
Director, William Bauer, of the fact of your representation of Ms. Boddy in
this PHRC matter. On December 2, 1983, Director of the Bureau within the PUC,
Kenneth Nicely, directed you to withdraw your appearance in the case on the
grounds of a conflict of interests and the Director cited as one basis for
this order the provisions of the State Ethics Act. You have withdrawn your
appearance, but now seek our opinion on this question under the Ethics Act.
III. Applicable Law:
The law to be applied to this matter is as follows:
Section 1. Purpose.
The Legislature hereby declares that public office is a
public trust and that any effort to realize personal
financial gain through public office other than
compensation provided by law is a violation of that trust.
In order to strengthen the faith and confidence of the
people of the State in their government, the Legislature
further declares that the people have a right to be
assured that the financial interests of holders of or
candidates for public office present neither a conflict
nor the appearance of a conflict with the public trust.
Because public confidence in government can best be
sustained by assuring the people of the impartiality and
honesty of public officials, this act shall be liberally
construed to promote complete disclosure. 65 P.S. 401.
Lawrence E. Keener- Farley, Esquire February 24, 1984
Page 4
IV. Di scussion:
Section 2. Definitions.
"Public employee." 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:
(1) contracting or procurement;
(2) administering or monitoring grants or
subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing
any person; or
(5) any other activity where the official action
has an economic impact of greater than a de
minimus nature on the interests of any person.
"Public employee" shall not include individuals who are
employed by the State or any political subdivision thereof
in teaching as distinguished from administrative duties.
65 P.S. 402.
Section 3. Restricted Activities:
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
Initially, we note that you have not contested in the context of this
request nor have you asked for our opinion with respect to whether or not, as
a Legal Assistant II, you are considered to be within the definition of
" public employee" as outlined above. Therefore, for purposes of this response
to your request, we will assume that you are a "public employee" in your
capacity as a Legal Assistant II. We will proceed to analyze the question,
then, of whether your representation of your co- worker in the complaint filed
against the PUC before the PHRC represents an inherent conflict of interest
and must be prohibited as such pursuant to the provisions of the Ethics Act.
We note that our jurisdiction and authority are with respect to the Ethics Act
only. This Opinion does not and cannot address questions of the propriety of
your conduct under statutes other than the Ethics Act, other rules, codes of
conduct or employer requirements.
Lawrence E. Keener - Farley, Esquire February 24, 1984
Page 5
Under the Ethics Act we have previously ruled that the actions of a
public employee or a public official should present neither a conflict nor the
appearance of a conflict with the public trust and have concluded that a
conflict of interest exists when an individual represents two or more persons
whose interests are adverse to each other. See Alfano, 80 -007. Likewise, we
have stated that under certain circumstances a public official may be
precluded from representing a client on legal matters. Specifically, we have
been called upon to address the question of whether the Controller of
Allegheny County should, under the Ethics Act, refrain from representing
clients on non - county matters. See Lucchino, 79 -075. In Lucchino we
concluded that because the Controller's responsibility with respect to
contracts, leases, and auditing, were so pervasive that the County Controller
should not represent a client on non - county matters where the client may have
been dealing with the County themselves or through other counsel.
Additionally, we concluded in that ruling that representation of a client as
an attorney in negotiations with the County would present a conflict
prohibited by the State Ethics Act. Finally, we stated that it would be a
violation of the Ethics Act for the Controller to represent any client in any
matter related to the County.
We must review these rulings and determine if the reasoning of these
rulings and their conclusions are applicable to questions you present. In
doing so, we are particularly cognizant of the factual circumstances in which
these rulings were made. Particularly, in Lucchino, the premise upon which
the Commission was working was that the Controller of the County also
functions as the watchdog of the public purse and as such, if he were to
represent a client on County or non - County matters, his obligations to oversee
those elements on the fiscal operations of the County over which he had
responsibility would be affected if not impaired.
Likewise, in Alfano we were dealing with an individual who was serving as
Chairman of the Pennsylvania Legislative Council of Organized Barbers who
desired to continue as a member of the State Board of Barber Examiners.
Essentially, we concluded that as a member of the State Board of Barber
Examiners, this individual had a duty to protect the public from certain
proscribed activities of barbers and had a duty to compel barbers to take
certain measures to protect the public interest. However, we concluded that
as Chairman of the Pennsylvania Legislative Council of Organized Barbers, an
entity designed to review and analyze legislative proposals and to make
recommendations to legislators concerning the regulation of barbers, this
individual would be representing conflicting interests were he to remain in
both posts. We advised that this individual resign one of the positions in
question. It is clear from our prior precedent that the question of any
inherent incompatibility or whether an individual is in fact seeking to
represent two or more persons whose interests are adverse to each other
depends upon a case -by -case analysis of the factual elements and, in
particular, a review of the interests the individual is responsible for or
seeks to represent.
Lawrence E. Keener - Farley, Esquire February 24, 1984
Page 6
In your case, the interests which you would be required to uphold and
implement as an employee within the Bureau within the PUC would be those
interests of the Bureau or the PUC with respect to the regulation of
certificated common or contract carriers or brokers to insure compliance with
the PUC's regulations and the Public Utility law. Your role within the PUC is
to determine compliance and to recommend actions regarding non - compliance with
respect to the activities of those regulated by the PUC.
The interests that you would seek to represent as counsel to Ms. Boddy
would be her interests in pursuing her claim against her employer (PUC) as to
alleged sex, race, and age discimination. It is true that PUC would be named
as Respondent in Ms. Boddy's complaint and the PUC's general interests are to
resolve that complaint favorably to the PUC. However, these general interests
of the PUC are not the same or even related to the specific interests that you
implement as an employee of the PUC with respect to certificated motor
carriers, common carriers, and brokers. These specific interests which you
must represent as an employee are not necessarily called into conflict by your
representation of Ms. Boddy's interest in the proceeding before the PHRC. You
would, of course, be required to refrain from any activities where the
specific interests of the PUC which you are required to represent as an
employee within the Bureau of the PUC, are directly and adversely impacted.
An example would be where you, as an attorney, would represent a client in a
summary prosecution in contradiction to those interests which you are
specifically required to implement as an employee of the PUC such as insuring
that summary prosecutions are undertaken by your Bureau. As an attorney, you
could not, consistent with your role within the Bureau, undertake to advise or
represent a certificated carrier with respect to such a prosecution in your
private capacity as an attorney. However, as an employee of the Bureau you
would not, in these circumstances, be acting adversely to the specific
interests which you are required to implement as an employee of the PUC and,
therefore, your representation would not be prohibited under the Ethics Act.
Finally, we note that this discussion assumes that there has been no
usage of confidential information as prohibited in Section 3(a) of the Ethics
Act in these circumstances.
V. Conclusion: The interests which you would seek to represent in the
above- referenced situation are not so incompatible, inherently in conflict, or
adverse to each other so as to require that you refrain from the activity in
order to comply with the Ethics Act.
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 of the advice given.
Lawrence E. Keener- Farley, Esquire February 24, 1984
Page 7
SSC/rdp
This letter is a public record and will be made available as such.
Finally, any person may request within 15 days of service of the opinion
that the Commission reconsider its opinion. The person requesting reconside-
ration should present a detailed explanation setting forth the reasons why the
opinion requires reconsideration.
By the Commission,
AUL J.
Chairman