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HomeMy WebLinkAbout92-572David Blancett - Maddock, Esquire 1415 Brownsville Road Pittsburgh, PA 15210 Dear Mr. Blancett- Maddock: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 29, 1992 92 -572 Re: Conflict; Public Official /Employee; Senior Planner: Budget Analyst, Community Planning and Capital Budget Division, City Planning Department; Attorney; Private Practice of Law. This responds to your letter of March 17, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a city employee serving in the position of a Senior Planner and Budget Analyst, in the Community Planning and Capital Budget Division, City Planning Department, who is also an attorney, with regard to the private practice of law. Facts: As a City of Pittsburgh employee who has recently obtained a license to practice law in Pennsylvania, you seek an advisory from the State Ethics Commission. Your current position with the City of Pittsburgh is designated "Senior Planner: Budget Analyst, Community Planning and Capital Budget Division, City Planning Department." You state that as a Budget Analyst, you have no direct community planning or zoning responsibilities. You have submitted a copy of the City of Pittsburgh job description for your position which job description is incorporated herein by reference. You are interested in periodically pursuing the practice of law during your off hours, in general areas of litigation including criminal, civil and zoning law. At the suggestion of the City Law Department, you are seeking an advisory regarding the applicability of the Ethics Law to your practice. You first ask whether you would be considered a "public employee" for purposes of the Ethics Law. If you are to be considered a "public employee" you further ask what restrictions /implications this would have on your private practice of law. Discussion: As a Senior Planner and Budget Analyst for the City of David Blancett- Maddock, Esquire April 29, 1992 Page 2 Pittsburgh's Community Planning and Capital Budget Division, City Planning Department, you are a public employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimis on the interests of another person. 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 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 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. David Blancett - Maddock, 2squire April 29, 1992 Page 5 In the event that you, a lawn= or other business with which you are associated, and/or -a private client 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. Miller, Opinion 8 -024. In those instances, it will be necessary that you be removed from that process. In such cases as noted above, Section 3(j) of the Ethics Law would require not only that you abstain from participation but also file a written memorandum to,that effect with the person recording the minutes or your supervisor. In summary, the Ethics Law would restrict the following: 1. The use of authority of office to 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 filing a written memorandum as per the requirements of Section 3(j) of the Ethics Law. Brooks, Opinion 89 -023. Furthermore, it is noted that this Commission would not have the jurisdiction to regulate the conduct of attorneys in the private practice of law. See, Pennsylvania Public Utility Bar Association v. Thornburgh, 62 Pa. Cmwlth. 88, 434 A.2d 1327 (1981), aff'd. per curiaia, 498 Pa. 589, 450 A.2d 613 (1982) . The propriety of the proposed conduct has only been addressed under the Ethics. Jaw; 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 do not involve an interpretation of_ the Ethics haw. Specifically not addressed herein is the applicability-of the Rules of Professional Conduct or the respective municipal code and /or Home Rule Charter. Conclusion: As a Senior Planner and Budget Analyst for the City of Pittsburgh's Community Planning and Capital Budget Division, City Planning Department, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Lair would not preclude you from outside employment /business activity subject to the restrictions and qualifications as noted above. In the event that you, a law firm or other business with which you are associated, and /or a pri.vate client has matters pending before your governmental body, *hem yqu could; not participate in that mater David Blancettt- Maddock, Esquire April 29, 1992 Page 6 and the disclosure requirements of Section 3(j) of the Ethics Law as outlined above must be satisfied. 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 formal 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 51 Pa. Code 52.12. cerely, Vincen Do ko Chief C. sel David Blancett - Maddock, Esquire April 29, 1992 Page 3 "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. 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.. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) 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 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 David Blancett- Maddock, Esquire April 29, 1992 Page 4 made as otherwise provided herein. If a conflict exists, Section 3(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 applying the above provisions of the Ethics Law to the instant matter, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited 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, the 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. A public official/employee must exercise caution so that his private business activities do not conflict with his public duties. Crisci, 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 a. means, in whole or part, to carry out private business activities. In addition, the public official /employee could not during government working hours, solicit or promote such business activity. Pancoe, supra. Similarly, Section 3(a) would expressly prohibit the use of . confidential information received by holding public office/ employment for such a prohibited private pecuniary benefit. In Dorrance, Order No. 456, the Commission held that an attorney for the Department of Public Welfare' (DPW) violated Section 3(a) as set forth in former Act 17 of 1978, when he utilized the equipment, facilities, materials and the postage of DPW to prepare and file a private civil court action. In Cohort, Order No. 610 -R, an attorney who was the Director of Enforcement for the Pennsylvania Securities Commission was found to have violated Section 3(a) of former Act 170 of 1978 when he received fees for participation as an arbitrator which was not in compliance with the Pennsylvania Securities Commission policy, and when he was paid for bogus sick Leave or false "logged in ".time ostensibly spent at the office or library when he was in fact sitting as a paid arbitrator. The above prohibitions would continue to apply under Act 9 of 1989.