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HomeMy WebLinkAbout92-010 KannebeckerCharles Kannebecker, Esquire Weinstein and Schneider 154 Pike Street Port Jervis, NY 12771 Dear Mr. Kannebecker: I. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger DATE DECIDED: December 10, 1992 DATE MAILED: December 15, 1992 92 -010 Re: Conflict, Public Official /Employees, Township Supervisor, Attorney, Private Clients, Appeal of Advice. This Opinion is issued pursuant to the appeal of the Advice of Counsel, No. 92 -612 issued on July 2, 1992. Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a second class township supervisor as to individuals who have matters pending before the township when the supervisor is an attorney for these individuals in unrelated matters. II. FACTUAL BASIS FOR DETERMINATION: The issue which you have presented was originally processed as a request for an advice of counsel and as a result Advice of Counsel No. 92 -612 was issued on July 2, 1992. That Advice concluded that you as a Delaware Township Supervisor had a conflict of interest in matters brought before the Township by your private law practice clients even if such matters were wholly unrelated to your representation of those clients. On July 17, 1992, this Commission received your letter of July 16, 1992, wherein you appealed the above Advice. By letter dated Charles Kannebecker, Esquire December 15, 1992 Page 2 August 10, 1992, you were notified of the date, time and location of the public meeting. The appeal of advice merely indicates that you disagree with the conclusion, that the Miller decision was incorrectly cited, although the citation is correct, and that you seek a review of the Advice. In your original letter of request dated June 11, 1992, you stated that you are a supervisor for Delaware Township, Pike County and in a private capacity represent clients who live or work in the Township. After noting that you would not represent anyone in a matter involving Delaware Township, you indicate that your clients could come before the township on matters wholly unrelated to your legal representation. You concluded by requesting an advisory which would delineate the parameters under which you could participate in township matters concerning persons whom you represent in an attorney client relationship in wholly unrelated matters. At the two hearings on your appeal of Advice, you proffered the following arguments: that a public official cannot use public office for a private pecuniary benefit; that under the common law a private or pecuniary interest must be direct or immediate for disqualification; that the Public Employee Relations Act has a standard of conflict which is any interest no matter how tenuous and the failure of the General Assembly to utilize that test in the Ethics Law reflects a legislative intent to accept the immediate and direct pecuniary interest standard; that the Preamble to the Ethics Law recognizes that public officials may have private business interests; that an attorney represents a client for one specific purpose; that a conflict presupposes serving two masters which would occur if there were legal representation of a client who had a matter pending with the township; that the denial of a vote unless a clear conflict exists would constitute disenfranchisement of the electorate; and that there cannot be two separate standards for disqualification of a public official under the Ethics Law and under the common law. III. DISCUSSION: As a supervisor in Delaware Township, Pike County, Pennsylvania, you are a public official as the term is defined under Act 9 of 1989 and the current regulations of the Commission. Accordingly you are subject to the provisions of the Ethics Law. Section 3(a) of Act 9 of 1989 provides: Section 3. Restricted Activities Charles Kannebecker, Esquire December 15, 1992 Page 3 (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. $403(a). The following definitions are relevant to the above quoted Section 3(a) of Act 9 of 1989: Conflict, authority of office or employment, and business with which he is associated. Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business." Any corporation, partner- ship, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. 65 P.S. 5402. Under Section 3(a) of Act 9 of 1989, a public official/ employee may not use the authority of office or confidential information to obtain a private pecuniary benefit for himself, a Charles Kannebecker, Esquire December 15, 1992 Page 4 member of his immediate family or business with which he or a member of his immediate family is associated. There are certain exclusions to the definition of conflict which are not herein applicable. In the context of Section 3(a) of Act 9 of 1989, we have held that it is permissible under the Ethics Law for an individual to serve both as a public official /employee and also have private business interests; however, in any instance when there is a conflict between those two interests the private interest must give way to the public interest which is paramount. Crisci, Opinion 89- 013. For example, as to a municipal engineer, we have determined that such a public employee who performed services for private clients which work product come before the governmental body for his review or approval was a violation of the Act. See, Ferrero, Order No. 720. In the context of the instant matter, we realize that the question has been posed in the context that you would not represent anyone in a matter involving Delaware Township and that the clients whom you represent who come before the Township would be as to matters wholly unrelated to your legal representation. We have addressed this precise issue in Miller, Opinion, 89- 024. In Miller, the issue was whether a township zoning officer was restricted by the Ethics Law from working for a consulting firm when that firm provided services to private clients whose plans could be brought before the township zoning commission for approval. After determining that the firm was a business with which the township's zoning officer was associated, we concluded that the zoning officer had a conflict to the following extent: Iii . at 3, 4. "For the reasons stated above, the Ethics Law would prohibit you from using the authority of your office to approve, recommend or play any role in of the approval of permits or in relation to any township action involving a client, plan or project in which Blake is involved." Miller is on point with the issue which you have raised. Thus, your law firm is a business with which you are associated. Even though the clients of your law firm will have matters pending before the township that are unrelated to your legal representation, we made no distinction in Miller that a conflict would somehow be lessened or eliminated if the firm's client was provided with services unrelated to the municipal matter. To the contrary, our opinion was indicative of a conflict as to the zoning Charles Kannebecker, Esquire December 15, 1992 Page 5 officer's participation in township action involving any client. The concern under the Ethics Law is that you as a township supervisor would look favorably on a matter submitted for township action by your law clients so as to engender a continued private business relationship with those clients. In this regard, how can the people be assured that your financial interests do not conflict with the public trust. 65 P.S. §401. Although we follow Miller in principle, we do believe that the holding in the Advice of Counsel that you would have a conflict as to your private clients even though your legal representation relates to matters wholly unrelated to the matter before the Township is overly broad. We believe that you would indeed have a conflict as to an ongoing client or a client who is on a retainer even if you would not represent the client as to a matter pending before the Township. However, as to former or past clients, we do not believe as a general rule that you would have a conflict. Under certain circumstances, a conflict could exist as to past clients; such would depend upon factors like the number of prior representations of any given client and the period of time over which that occurred. If and when such specific instances arise, you may seek additional advice as to each circumstance since all that we may do at this juncture is establish general guidelines and cannot proffer advice on every possible scenario which may arise. As to your proffered counter arguments for a result of no conflict, we reject the assertion that a conflict only occurs when the pecuniary benefit is immediate or direct. The foregoing common law rule has not been adopted by the General Assembly as to the statutory definition of conflict contained in Section 3(a) of the Ethics Law, the latter definition being the one we must follow. As to the significance of a conflict under the Public Employee Relations Act, we attribute no impact to this argument because we must be guided solely by the conflict provision of the Ethics Law. The failure to the General Assembly not to adopt the test for conflict set forth in the Public Employee Relations Act is not indicative of legislative intent to use the common law rule since the General Assembly would have used the language direct or immediate pecuniary interest if that was indeed the intent. We agree that the Ethics Law recognizes that public officials and public employees may have private business interests but that those private interests cannot conflict with and must defer to the public interest. Crisci, supra. As to the interpretation that a conflict is .serving two masters, it is sufficient to note that the statutory definition of conflict is controlling. As to the disenfranchise - ment argument, Section 3(a) and 3(j) of the Ethics Law require recusal when a conflict exists. Finally, as to the argument about two separate standards for disqualification, we disagree that there cannot be two standards. Further, if and when another law would conflict with the Ethics Law, Act 9 must prevail. 65 P.S. S412. Charles Kannebecker, Esquire December 15, 1992 Page 6 We need not discuss and will affirm the Advice of Counsel regarding Section 3(j) requirements as well as the general commentary as to Sections 3(b) and 3(c) of Act 9 of 1989. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein are the Rules of Professional Conduct and the Second Class Township Code. Advice of Counsel 92 -612 is modified to the extent noted above. IV. CONCLUSION: A township supervisor is a public official subject to the provisions of the Ethics Law. A township supervisor has a conflict as to individuals who have matters pending before the township when the supervisor is an attorney for those individuals in unrelated matters when the attorney- client relationship is ongoing or when the client is on a retainer. Circumstances could arise where a conflict may exist even as to past clients. The disclosure requirements of Section 3(j) of Act 9 of 1989 have application as to the conflict under Section 3(a) of Act 9 of 1989. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, James M. Howl Chair