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HomeMy WebLinkAbout92-542-Ms. Maryann Conway, Esquire Board of Commissioners Schuylkill County Court,House 401 North Second Street Pottsville, PA 17901 -2528 Dear Ms. Conway: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF _COUNSEL `February 19 .1992 92 -542 Re: Conflict, Public Official / Employee, Private Employment or Business, County Commissioner,and Attorney at Law. This responds to your letter of January 10, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether a county commissioner is prohibited or restricted by the Public Official and Employee Ethics Law from working as an attorney in a private capacity in addition to public service. Facts: Having been sworn in as Minority Commissioner of Schuylkill County on January 6, 1992, you are acting upon the advice of Chester Corse, Esquire, to seek an advisory from this Commission with regard to . your accepting cases in Schuylkill County while simultaneously serving as a County Commissioner. You . note that you are particularly concerned that you do not _ violate any of the provisions of the Ethics Law or accept cases which may pose a conflict of interest to your position as Commissioner. You point out that the County Commissioners are responsible for approving the salaries of the Assistant District Attorneys and the court personnel, including the divorce, support and custody masters who are employed directly by the Court, You have abstained from voting on those salaries, because you did not want to preclude yourself from a general practice of law. In the past, you have practiced domestic relations law, real estate law, and Orphan Court's law, as well as criminal law. You believe that sometime in the future you may want to resume your private practice. Based upon all of the above, you request an advisory fro* this Commission to define the areas where there may be a conflict or violation of the law. Ms. Maryann Conway, Esquire February 19, 1992 Page 2 Discussion: As a County Commissioner. for Schuylkill- County, Pennsylvania, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: ' Section 3. -- Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public`emplvyee of the authority of his office or employment or any confidential information received tough his holding public . office or employment f<r the private pecuniary benefit of himself, a member of his immediate family or a busiri ss with which he or a member of his ii ediate family is associated. _ _ __ donflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the ` same' degree c1 S 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 e necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a Ms. Maryann Conway, Esquire February 19, 1992 Page 3 director, officer, owner,, employee or has a financial interest. In addition, Sections 3(b) and 3(c) of the Ethics Law 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 judgement 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. In applying the above provisions of the Ethics Law to the instant matter, Section 3(a) of the Ethics Law prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a_ public ; position for the private pecuniary benefit of the public : official/public employee himself, any member of his immediate family, or a. business with which he or a member of his immediate family is associated. We note that Section 3(a) of the Ethics Law does not prohibit public officials /employees from outside business activities_or employment; however, public official /employee may not use the authority of office for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe,_Opinion 89 -011. Similarly, Section 3(a) would expressly prohibit any use of confidential information received, by holding office /employment. for such a prohibited private pecuniary benefit... A public official /employee must "exercise }caution so that his private business activities do not conflict with his public duties. Opinion 89 -013. Thus, a public official /employee could not'perform private business using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel or any other property could not be used as -_ means, in whole or part, to carryout private business activities Ins addition, the public official /employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. It is generally noted that in the event-your- private employer or- business has a matter- pending before your governmental body ' or if you as part of such official ".duties must participate, review or pass upon that matter, a conflict would exist. _Killer, Opinion 89-024. In those instances, it will be necessary that .you be removed from that pxocess. Ms. Maryann Conway, Esquire February 19, 1992 Page 4 In such cases as noted above, Section 3(j) of the Ethics Law would require not only that you abstain from participation but also publicly announce your abstention and the reasons for same, both orally_andby filing a written memorandum to that effect with the person recording the minutes. In summary, the Ethics Law would restrict the following: 1. The use of authority of office t,- obtain any business in a private capacity; 2. utilization of confidential information gained through public position; 3. participating in discussions, reviews, or recommendations on matters which relate to the business/private employer which may come before the governmental body and in Such cases publicly announcing the relationship or advising the supervisor as well as filings written memorandum as per the requirements of Section 3 of the Ethics Law. Brooks, Opinion 89 -023. As for your concern that the County Commissioners are responsible for approving the salaries of the Assistant District Attorneys and various Court personnel with whom you would be dealing in the private practice of law, absent any factual nexus - between the setting of the salaries and your private practice, such as, for example, improper understandings which would transgress Sections 3(b) and/or 3(c) set forth above, the setting of these individuals' -- salaries -in and of itself would not constitute a conflict of interest for yoL. It is necessary to clearly delineate the parameters within which your inquiry has been addressed. Specifically, your conduct has been addressed from the perspective of your capacity as a public official - not from your perspective as an attorney engaged in the private practice of law. Insofar as your 'inquiry relates to your proposed conduct as a private attorney engaged in the private practice of law, Section 3(a) . of the Ethics Law cannot be applied to restrict that proposed activity. See, Pennsylvania Public Utility Commission Bar Association v. Thornburch, 6 Pa., Cmwlth. 88, 434 A.2d 1327 (1981), aff'd per curiae, . Fa . 589:, 450: A. 2d 613 (1982) (interpreting former Secttipn 3.(ej of: .ct 17'0 0 of. 1978) . The PrePr .ety, of the proposed conduct has only been addressed under the Ethics. Law; the app1ioability,;of' any other statute, code, ordinance, regulation or other code of conduct- Ms. Maryann Conway, Esquire February 19, 1992 Page 5 Sincerely, 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 is the applicability of the Rules of 'Professional "Conduct. It is recommended that questions regarding your obligations under the 'Rules of Professional Conduct be directed to the Ethics Committee of the Pennsylvania Bar Association. Conclusion: As a County Commissioner for Schuylkill County, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude you from outside employment /business activity such as the private practice of law, subject to the restrictions and qualifications as noted above. In the event that the employer /business has matters pending before your governmental body, then you could not participate in that matter and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. Section 3(a) of the Ethics Law would not restrict your conduct insofar as it constitutes the private practice of law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a Opinion from the Commission will be issued. Any such appeal,must be in writing 'and must be received at the. Commission within 15 days of the date of this Advice pursuant to : Pa. Code 12.12. Vincent J. ' Dopko Chief Counsel ..71..44.