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HomeMy WebLinkAbout161 BartleHarvey Bartle, III, Esq. 100 W. Moreland Avenue Philadelphia, PA 19118 Re: #81 -96 -C Dear Mr. Bartle: are: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION September 22, 1982 Order No. 161 The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation into these allegations and finds that you did not violate the Ethics Act or engage in conduct which created the appearance of a conflict of interest under the Act. The individual allegations and findings on which our conclusion is based I. Allegation: That while serving as Attorney General of the Commonwealth of Pennsylvania and with knowledge of the fact that you had already decided to return to the law firm of Dechert, Price & Rhoads and that firm had decided to accept you, you rendered an official opinion of the Attorney General relating to the appointment of Counsel to the Pennsylvania Housing Finance Agency (PHFA) and that thereafter, your law firm, Dechert, Price & Rhoads, was appointed as co- counsel to PHFA; that during this time you were aware that the Dechert firm was being considered for appointment as legal or outside counsel to PHFA. Findings: 1. You served as Attorney General of the Commonwealth of Pennsylvania until January 20, 1981. 2. As Attorney General you were a "public official" as that term is defined in the Ethics Act. 3. Upon termination of your role as Attorney General, you became a "former public official" within the meaning of that term as set forth in Section 3(e) of the Ethics Act 65 P.S. 403(e). 4. While serving as Attorney General, your duties and responsibilities included acting as official legal advisor to the Governor and to all administrative departments, boards, commissions and as such, you supervised all the legal business of same. Harvey Bartle, III, Esq. September 22, 1982 Page 2 5. As part of your official duties as Attorney General, you were asked to and issued on January 13, 1981, a legal opinion relating to the status of PHFA under the Commonwealth Attorneys Act, Act No. 164 of 1980, and this Opinion concluded that PHFA was an "executive agency" under the terms of that Act; therefore, that PHFA would receive legal counsel as appointed by the General Counsel's office. During your last week as Attorney General you issued approximately seven other opinions. 6. This Opinion was subsequently reviewed by the independently elected Attorney General who in a July 22, 1981 letter stated that: "This issue was previously reviewed by this office in early February in response to questions raised by the General Counsel. At that time, it was determined that the Opinion was and should continue in full force in effect." 7. As of January 20, 1981, you left the office of the Attorney General. a. Immediately prior to entering public service you had been associated as a partner in the private practice of law with the firm of Dechert, Price and Rhoads, hereinafter Dechert. b. Early in January, 1981, you had decided to return to the private practice of law upon the termination of your term in office as Attorney General. c. As of February 9, 1981, you returned to Dechert as a partner. 3. A notation on records retained at the office of Attorney General indicates that the request for an opinion as to the PHFA was initiated by January 7, 1981, by Ross. a. Robert Ross, Jr., hereinafter Ross, a Deputy Counsel in the office of the General Counsel, serves on the PHFA board ac the representative of the Secretary of Banking. b. David DeVries, currently a Deputy Attorney General, Office of Civil Law, Attorney General's Office and then an Attorney in your office prepared the draft for your January 13, 1981 Opinion. There was no draft in the files supporting your January 13 Opinion. c. Neither Ross, nor James Farley, your Administrative Deputy General Counsel, at that time and currently Deputy General Counsel in the Office of the General Counsel could recall the circumstances surrounding the preparation and circulation of this notation. d. You were not aware of this notation. Harvey Bartle, III, Esq. September 22, 1982 Page 3 9. Shirley Dennis, Secretary of the Department of Community Affairs, who is the statutorly appointed Chairman of PHFA, denies making the request for the Opinion you issued on January 13, 1981. a. Shirley Dennis attended the PHFA meeting of January 13, 1981, and as recorded in the minutes of that meeting relating to a discussion of the Commonwealth Attorney's Act: "Mr. Ross suggested the Attorney General be asked to give his opinion on this matter. Mr. Ross will handle this report." b. The Opinion you issued on January 13, 1981, was directed to Shirley Dennis, Secretary of the Department of Community Affairs. c. The fact that you issued your opinion on January 13, 1981, indicates that an Opinion, in all probability, had been requested prior to the January 13, 1981 PHFA meeting at which Ross was authorized to secure an opinion. There is no evidence of any request for opinion prior to the January 13, 1981 opinion you issued other than the "confidential" inquiry by Ross as set forth above. 10. Sometime after February 9, 1981, you received a phone call from Ross advising you that Dechert had been appointed as outside counsel to PHFA. 11. In a March 26, 1981 letter, the General Counsel confirmed that Dechert had been appointed as outside counsel to PHFA. By a letter of March 30, 1981, you acknowledged the appointment and advised that Dechert's partner, William F. Bohlen, would be in charge of PHFA matters on behalf of Dechert. The appointment of Dechert as outside counsel (as apposed to bond counsel) to PHFA was based upon the General Counsel's authority under the Commonwealth Attorneys Act, together with the General Counsel's knowledge and belief that Dechert enjoyed an execellent reputation and had considerable expertise in the field of housing law. 12. You did not, at any time, negotiate the terms of the Dechert appointment with the office of the General Counsel. 13. There is no evidence that you were influenced in your January 13, 1981 Opinion by the appointment of Dechert as co- counsel for PHFA or that you were aware that Dechert was being considered for such appointment prior to the issuance of this Opinion. Discussion: We must emphatically state that during our investigation or review of that investigation, we, in no way, question the legal authority of the General Counsel to appoint counsel within the purview of the authority vested in that office under the Commonwealth Attorneys Act, Act 1980 - 164, 71 P.S. 732 - 101 et seq. We are concerned only with determining whether Act 170 has been violated. Harvey Bartle, III, Esq. September 22, 1982 Page 4 The most pertinent provisions of the Ethics Act are Sections 3(a) and 3(b) which state: 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. No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(a) and (b) respectively. Despite your original assertion that Secretary Dennis requested an opinion, the best evidence available indicates that the request which led to your opinion of January 13, 1981 was initiated by Mr. Robert S. Ross, Jr., Executive Deputy General Counsel to the Governor. While he had been asked by the PHFA Board to look into this matter on January 13, 1981, your opinion was issued on that date and we must conclude that the PHFA action was not the stimulus for the opinion you issued on January 13, 1981. Although we find no evidence that you were involved in this process except when issuing the final opinion, it is difficult to understand why the notation (see No. 8 above) addressed to you would not have been included when you received the opinion for your final consideration. It is also difficult to accept the lack of either a draft opinion or other explanatory documents supporting the conclusion you finally reached. Additionally, it is troubling that no one can recall the circumstances surrounding this notation or the request for opinion. It is especially disconcerting that these uncertainties should exist in a matter which involved a cabinet officer, the recently enacted Commonwealth Attorneys Act which significantly changed relationships in the Commonwealth, and an opinion which would have significant impect upon PHFA, at least. However, these contradictions do not lead to a conclusion that Sections 3(a) or (b) have been violated. Harvey Bartle, III, Esq. September 22, 1982 Page 5 A violation of Section 3(a) would require evidence that you used your office or confidential information acquired through that office, to achieve personal financial gain. While your position with Dechert, Price & Rhoads could be construed as personal financial gain, there is no evidence that this was achieved through the use of your office or confidential information of that office. A violation of Section 3(b) would require evidence that you had solicited or accepted something of value to influence your official action or judgment. Again, there is no evidence that this occurred. Conclusion: You did not violate Section 3(a) or " ection 3(b) o'r Act 110 -1978 by your ativities relating to the January 13, 1981 opinion, nor did you create an appearance of a conflict of interest in your actions subject to review here. II. Allegation: That as a former public official, after leaving the office of the Attorney General, you negotiated or otherwise discussed with public officials the terms and conditions, e.g. the hourly rate, terns of appointment, nature of services required, estimated hours of service of the agreement or appointment under which the Dechert firm would serve as legal or outside counsel to PHFA. Findings: In addition to the findings previously made, which are incorporated here and by reference, we make the foflowing findings: 14. Mr. William Cleveland, former Executive Director of PHFA, was contacted by Mr. Bohlen of Dechert after you had informed Mr. Bohlen that Dechert had been appointed as co- counsel to PHFA. 15. There is no evidence that you had any contact with the General Counsel or members of his staff in relation to this appointment beyond the phone call referenced previously and your March 30, 1981 acknowledgement of the General Counsel's letter as noted previously. Discussion: Section 3(e) of the Ethics Act with which we must deal states: 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). Harvey Bartle, III, Esq. September 22, 1982 Page 6 The Ethics Commission has interpreted representation and governmental body with which a former official was associated in many instances. The term "representation" has consistently been held to include negotiation on contracts. Kilareski, 80 -054; Mars, 80 -039; Dalton, 80 -056; and Baxter, 81 -004. Thus, you could not negotiate on a contract with the "governmental body" with which you were "associated" during the year after leaving that body. The "governmental body" with which you were associated must be determined by reviewing your official duties and responsibilities in the post you held as Attorney General, prior to the passage of the Commonwealth Attorneys' Act, 1980 -164, October 15, 1,980, P.L. 950, No. 164 which was defined by the Administrative Code, 71 P.S. 811. As Attorney General under this prior law, you were appointed by the Governor and served as Chief Legal Officer to the Governor and to all administrative departments, boards, commissions and supervised, directed and controlled all legal business of every administrative department, board and commission of the state government (71 P.S. 292). In this capacity, you must be deemed to have been a "fellow worker, colleague, friend, companion, or ally" of the Governor, his office, and the various administrative departments, boards and commissions. See Kury v. State Ethics Commission, Pa. Cmwlth Ct. , 435 A.2d 940 (1981). Your ability to significantly influence or control actions of the various boards and commissions is amply demonstrated by your January 13, 1981 opinion and its effect on the operations of PHFA. Thus, your governmental body was the Governor, his office, and all boards, commissions, committees, etc. under his jurisdiction. On the facts as we found them, there is no violation of Section 3(e) of the Ethics Act because you did not "negotiate" with the "governmental bodies" with which you were associated while serving as Attorney General. However, the Commission has a responsibility to consider whether public officials and public employees have avoided the appearance of a conflict with the public trust as required by The Purpose, (Section 1) of the Act. This section states that it is the people who must be assured that there is no actual or apparent conflict of interests and this requires that we use their perspective. Although you could not have anticipated or prevented the phone call from Mr. Robert S. Ross, Jr., you could have ended your involvement then - rather than acknowledge the appointment and refer the matter to another member of your firm which you did in your letter of March 30, 1981 to Mr. Waldman. Had you immediately upon receipt of the phone call ceased participating in the contacts involving the appointment, the public would have less reason to hold misperceptions about your involvement. However, we find this participation - although not the most effective way to allay public concern - does not constitute an appearance of a conflict under the Ethics Act. Harvey Bartle, III, Esq. September 22, 1982 Page 7 Conclusion: You did not violate Section 3(e) nor did you create an appearance of a conflict of interest in your actions relating to the appointment of Dechert, Price & Rhoads as co- counsel to the Pennsylvania Housing Finance Agency. Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will become available as a public document within 15 days unless you file documentation with the Commission which justifies reconsideration and /or challenges pertinent factual findings. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge this - Order, may violate this confidentiality by releasing, discussing or circulating this Order. Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1000 or imprisoned for not more than one year or both, see 65 P.S. 409(e), SSC /na Sincerely, aul J. jriith Chairman f/