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HomeMy WebLinkAbout92-603William A. Hebe, Esquire Spencer, Gleason & Hebe 17 Central Avenue P.O. Box 507 Wellsboro, PA 16901 Dear Mr. Heber STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 18, 1992 92 -603 Re: Attorney, Solicitor to County Treasurer, Former County Solicitor, Representation, Section 3(g). This responds to your letter of May 19, 1992, in which you requested advice from the State Ethics Commission. Issue: You have requested advice regarding the permissible scope of your practice of law upon termination of your employment as the solicitor for Tioga County. Facts: You state that you have acted as the County Solicitor for Tioga County, a sixth class county, for the past 18 years. The new Board , of Commissioners did not renew your appointment for 1992 and therefore you are no longer acting as County Solicitor. However, .you are appointed to act as Solicitor for the County Treasurer. You state that it is your understanding of Section 3(g) of the Ethics Law that you may not represent the Treasurer on any matter before the County for a one year period following termination as County Solicitor. You indicate that ,a situation has arisen where it is necessary for the Treasurer to institute litigation against the Commissioners to fill a vacancy in the Treasurer's office. You specifically inquire as to whether you may represent the Treasurer in an action in court where the Commissioners will be named as defendants. It is your position that you would not be representing a person before the Commissioners such that suing the Commissioners in court would not be an activity barred by Section 3(g) of the Ethics Law. Discussion: In your present position as Solicitor to the Tioga County Treasurer, as well as in your former position as County Solicitor, you would be considered a "public employee" within the William A. Hebe, Esquire June 18, 1992 Page 2 definition of that term as set forth in the Public Official and Employee Ethics Law and the regulations of this Commission, and subject to the Ethics Law. 65 P.S. 5402; 51 Pa. Code 51.1. See also, Spataro, Opinion 89 -009 at 4; Maunus v. Com., State Ethics Commission, 544 A.2d 1324, 1326 (1988). ' However, in Pennsylvania Public . Utility Bar Association v. Thornburgh, 62 Pa. Cmwlth. 88, 434 A.2d 1327 (1981), affirmed per curiam, 498 Pa. 589, 450 A.2d 613 (1982), the Court held that Section 3(e) of the Ethics Act of 1978 (now Section 3(g) of reenacted and amended Act 9 of 1989) was an impermissible intrusion upon the Supreme Court's authority to regulate an attorney's conduct. As applied by this Commission, this judicial decision means that there are no prohibitions under Section 3(g of the current Ethics Law upon your conduct insofar as that conduct constitutes the practice of law. See, Spataro, Opinion 89 -009. Therefore, even as to representation before the governmental body with which you were formerly associated, insofar as your conduct would constitute the practice of law, Section 3(g) of the Ethics Law could not be applied to restrict that proposed activity. Particular reference should be made to the decision of the Commonwealth Court at Footnote 7, 434 A.2d at page 1331 -1332. In this note, the Court indicated that any activity in which the attorney purports to render professional services to a client may only be regulated by the Supreme Court. We must conclude that to the extent that you would represent a client, as a lawyer, before the governmental body with which you were associated, Section 3(g) of the Ethics Law would not operate to bar such activity. Thomas, Opinion 90 -018. If, however, you would undertake activities before your former governmental body which did not fall within the category of the "practice of law," the prohibitions of Section 3(g) of the Ethics Law might be applicable. An activity which might be considered by the Commission not to constitute the "practice of law" or to be undertaken in the capacity as lawyer- client, might be lobbying. However, it is assumed, for the purposes of this Advice, that you intend to undertake all proposed activities in the capacity of lawyer - client, that these activities would constitute the practice of law, and that the provisions of Section 3(g) of the Ethics Law, pursuant to the mandate of the Supreme Court's ruling would, .therefore, be inapplicable. Andrews, Opinion 90 -018. In any event, you should be advised that your activity, even if Section 3(g) of the Ethics Law were to be applicable, would not . regulate your conduct except with respect to the governmental body with which you have been associated while employed as the Tioga Solicitor. Therefore, any representation which you might undertake with respect_, tq a client or employer before any entity William A. Hebe, Esquire June 18, 1992 Page 3 other than your former governmental body would not be restricted by Section 3(g) of the Ethics Law in any event. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the propriety of any other statute, code, regulation or ordinance other than the Ethics Law has not been considered. Specifically not addressed in this Advice is the applicability of the County Code and /or the Rules of Professional Conduct. Conclusion: Section 3(g) of the Ethics Law would not restrict your representation or your activities, as outlined above, insofar as those activities constitute the practice of 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. such. This letter is a public record and will be made available as 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 §2.12. Very truly yours, vuukAl Vincent` -' . Dopko Chief Counsel