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/