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HomeMy WebLinkAbout02-573 ConfidentialADVICE OF COUNSEL July 17, 2002 02 -573 Re: Conflict; Public Official /Employee; A; Supervisor B; County; Mental Health /Mental Retardation Program; Children and Youth Services; Attorney; Private Practice of Law. This responds to your letter of June 12, 2002, by which you requested a confidential advisory from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Paa �S. § 1101 et seq., presents any prohibition or restrictions upon an A or a Supervisor B for the out - patient department of a county mental health /mental retardation ( "MH /MR ") program, who in his private capacity is an attorney providing legal representation to individuals who may be receiving MH /MR services from county employees other than himself. Facts: As an A for the County C MH /MR program, you seek a confidential advisory from the State Ethics Commission. You have submitted facts, the material portion of which may be fairly summarized as follows. You have been employed by County C ( "County ") since [date], initially as a caseworker for the County's Children and Youth Services ( "CYS "), and subsequently as an A for the County's MH /MR Program. Your work as an A has led to your periodically being subpoenaed by CYS to testify in child dependency hearings. In the future, you may be accepting a supervisory position with the Out - Patient Department of the County MH /MR Program, specifically, as a Supervisor B. You have submitted copies of the job descriptions and job classification specifications for your current and prospective positions, which documents are incorporated herein by reference. It is noted that the duties of an A for the County's MH /MR Program include, inter alia, the following: [description of duties]. An employee in this position works under general supervision but exercises independent judgment. It is further noted that the duties of a Supervisor B include, inter alia, the following: [description of duties]. Confidential Advice 02 -573 July 17, 2002 Page 2 In addition to your work for the County, in your private capacity, you are a practicing attorney in Pennsylvania. However, you emphasize that the services that you have provided for the County have been of a non -legal nature, and that at no time have you functioned as an attorney on behalf of the County. Recently, you were advised by an attorney in the County Solicitor's Office that if you would represent a parent in a dependency hearing initiated by CYS, such conduct would constitute a conflict of interest. You state that although you have never undertaken such representation, it is your view that such conduct would not constitute a conflict under the Rules of Professional Conduct. You state that although the attorney agreed that your representing clients in divorce proceedings and child custody disputes was acceptable, she advised you that you would have to recuse yourself or otherwise limit your representation of such clients who were involved with CYS. You are in the process of seeking an advisory opinion from the Pennsylvania Bar Association Committee on Legal Ethics regarding your conduct as an attorney. Your instant request for an advisory from the State Ethics Commission is limited to the Ethics Act and your conduct as a County employee. To the extent you would be considered a "public employee" subject to the Ethics Act, you seek an advisory from the State Ethics Commission for the following questions with respect to both your current position as an A and your prospective position as a Supervisor B for the County MH /MR Program: 1. Whether pursuant to the Ethics Act you would be prohibited from providing legal services to parents of children involved in hearings initiated by CYS; 2. Whether pursuant to the Ethics Act you would be prohibited from providing legal representation to parents of children involved in hearings initiated by CYS if such clients would also be receiving services at MH /MR from employees other than yourself; 3. Whether pursuant to the Ethics Act you would be permitted to represent persons applying for Social Security benefits on the basis of some mental disability or mental illness if such persons would also be receiving mental health treatment at MH /MR from employees other than yourself; 4. Whether pursuant to the Ethics Act you may refer an individual whom you have been Court - appointed to represent as an attorney On a criminal or juvenile delinquency context) to MH /MR for counseling services when someone other than you would provide the counseling services; and 5. Whether pursuant to the Ethics Act you may generally represent persons receiving mental health treatment at MH /MR from employees other than you in matters other than those discussed above. Finally, you ask in what ways, if any, your acceptance of the aforementioned supervisory position would constrain the types of legal services that you may provide. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only Confidential Advice 02 -573 July 17, 2002 Page 3 affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Preliminarily, a determination must be made regarding whether, as an A or as a Supervisor B for the County MH /MR Program, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. The Ethics Act defines the term "public employee" as follows: § 1102. 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 minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. 65 Pa.C.S. § 1102. The Regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. Confidential Advice 02 -573 July 17, 2002 Page 4 (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommen- dations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary - treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant super- intendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. Confidential Advice 02 -573 July 17, 2002 Page 5 (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code § 11.1. Status as a "public employee" subject to the Ethics Act is determined by applying the above definition and criteria to the position held. The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Furthermore, the Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. Based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light of the duties and responsibilities of your current and prospective positions, the necessary conclusion is that in either of the aforesaid positions, you would be considered a "public employee" subject to the Ethics Act. It is clear that in your capacity as an A for the County MH /MR Program, you have the ability to take or recommend official action with respect to subparagraphs (1) and (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, you [description of duties]. Your work is performed under general supervision, but independent judgment is exercised. These activities would also meet the criteria for determining your status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code § 11.1, "public employee," subparagraph (ii). Cf., Rinehart - Pasda, Opinion 92 -006. As a Supervisor B for the County MH /MR Program, you would likewise have the ability to take or recommend official action with respect to subparagraphs (1 ) and (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, your responsibilities would include [description of duties]. These activities would also meet the criteria for determining your status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code § 11.1, "public employee," subparagraph (ii). Cf., Rinehart - Pasda, Opinion 92 -006. Having established the above, Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms are defined in the Ethics Act as follows: § 1102. 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 Confidential Advice 02 -573 July 17, 2002 Page 6 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. The term 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, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (j) Voting conflict. - -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be Confidential Advice 02 -573 July 17, 2002 Page 7 permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. § 1103(j). In each instance of a conflict, Section 1103(j) requires the public official/ employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to your inquiry, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interest does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position- -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity, Gorman, Order 1041, or private client(s). Miller, Opinion 89 -024. In Kannebecker, Opinion 92 -010, the Commission considered whether the Ethics Act would impose any restrictions upon a township supervisor as to individuals who had matters pending before the township when the supervisor was an attorney for those individuals in unrelated matters. The Commission held: We believe that you would have 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. Kannebecker, at 5 (Emphasis added). In considering the above, it is clear that your law practice would be considered a business with which you are associated. As a general rule, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest as to matters that would come before you either as an A or as a Supervisor B when such matters would financially Confidential Advice 02 -573 July 17, 2002 Page 8 impact you, your law practice, or your client(s). See, Kannebecker, supra. As noted above, in each instance of a conflict, you would e� required to abstain and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Having established the above general principles, your five specific questions enumerated above shall be addressed. In response to your first, second, third, and fifth questions, you are advised that the Ethics Act would not apply to restrict you as an attorney from providing legal services to clients. However, as noted above, Section 1103(a) would prohibit you from using the authority of your current or prospective public position with the County, or confidential information received by being in such a public position, to solicit clients for your private law practice or to otherwise advance your private law practice. Further, under Section 1103(a), you would have a conflict of interest in your capacity as an A or as a Supervisor B in matters involvinc your legal clients regardless of whether such clients would be receiving services at IV H /MR from other employees. Such a conflict of interest would preclude you from performing supervisory duties as to the MH /MR employees handling matters involving your clients. In response to your fourth question, you are advised that Section 1103(a) of the Ethics Act would not prohibit you as an attorney from referring an individual whom you have been Court - appointed to represent as an attorney to MH /MR for counseling services when another MH /MR employee would provide the counseling services. However, pursuant to Section 1103(a) of the Ethics Act, you would in your public capacity have a conflict as to matters involving such a client and you would be precluded from exercising supervisory duties as to other County employees handling matters involving such a client. In response to your final question as to whether /how your acceptance of the aforementioned supervisory position would constrain the types of legal services that you may provide, you are advised that the Ethics Act would not apply to restrict you in your capacity as an attorney, but rather, would restrict you in your capacity as a public employee. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Rules of Professional Conduct, the County Code, or the Mental Health and Mental Retardation Act of 1966. Conclusion: Either as an A or as a Supervisor B for the County C ( "County" Mental Health ( "MH /MR ") Program, you would be considered a "public employee' subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The Ethics Act would not apply to restrict you in your private capacity as an attorney. However, your private law practice would be considered a business with which you are associated. Section 1103(a) of the Ethics Act would prohibit you from using the authority of your current public position or prospective public position with the County, or confidential information received by being in such public position(s), to solicit clients for your private law practice or to otherwise advance your private law practice. Pursuant to Section 1103(a) of the Ethics Act, you would generally have a conflict of interest in matters before you in the capacity as an A or as a Supervisor B for the County MH /MR Program which would financially impact you, your law practice, or your client(s). Under Section 1103(a), you would have a conflict of interest as an A or as a Supervisor B for the County MH/MR Program in matters involving our legal clients regardless of whether such clients would be receiving services at M /MR from other Confidential Advice 02 -573 July 17, 2002 Page 9 employees. Such a conflict of interest would preclude you from performing supervisory duties as to the MH /MR employees handling matters involving your clients. In each instance of a conflict, you be required to abstain and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided 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. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel