The URL can be used to link to this page

Home My WebLink About93-534 ClineCynthia M. Cline, Esquire Bowlen, Cline, Morrison & Miele 300 Court Plaza Tower 45 East Main Street Uniontown, PA 15401 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 31, 1993 93 -534 Re: Simultaneous Service, County Conflicts Counsel and Jury Commissioner. Dear Ms. Cline: This responds to your letter of February 23, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a County's "Conflicts Counsel" from also serving or being employed as a Jury Commissioner. Facts: You request an advisory from the State Ethics Commission as to the potential for either conflicts of interest or incompatibility of offices. You are presently the "Conflicts Counsel" for Fayette County. The position requires you to represent indigent criminal defendants where a conflict of interest arises with the Public Defender's Office. You are paid a yearly salary of $18,000.00 regardless of the number of cases you try or the result. There are no benefits, you have no public office, and you use your own staff and supplies. The appointment is made by the President Judge on a year to year contractual basis. You do occasionally do private criminal cases. You are in a partnership with three other attorneys. Mark Morrison, your partner, is the other conflicts counsel (Fayette County has two). Your other partners, Thomas Bowlen and Marianne Miele do virtually no criminal law but do try civil jury trials from time to time. Cynthia M. Cline, Esquire March 31, 1993 Page 2 You are planning to run for the Democratic Jury Commissioner post. There are two elected Jury Commissioners, one from each party, and the President Judge. The Master list of jurors consists of eligible voters, tax lists and other public lists. The Master list is a public document. The Jury Commissioners send questionnaires to potential jurors to elicit information regarding qualifications. Once eligibility is determined, the juror is added to the Master list. At least once each month, an order is received to select two hundred jurors from the Master list by random selection. The names are pulled by one or more of the Jury Commissioners. The list of the panel is sent to the Court and subpoenas are issued to the jurors. The jurors appear at the first day of the court term where individual panels are selected by pulling their names "bingo style" from a container. This selection is done by one of the Judge's law clerks. That panel is taken to the Court room where voir dire is conducted and challenges for cause and preemptory challenges are used by both parties. One of the standard questions is whether the jurors know the counsel for either party and whether such knowledge would affect the person's ability to be fair and impartial. If the juror indicates that he or she would be so affected, the person is excused. You state that in your research, you have found no .legislation which would indicate that position as Conflicts Counsel is incompatible with that of Jury Commissioner. You have also reviewed Sections 2 and 3 of the Ethics Law with regard to conflict of interest. You state that there is no discretion or authority of office that the Jury Commissioner would have which would influence a pecuniary interest of you or your partnership. The eligibility of voters is by statute and the Master list would be a public document. Further, you do not believe this would place you in a position of serving any adverse interests. Smith, Opinion 89 -010. You note that criminal cases cannot be taken on a contingency basis and you have explained that you get no additional compensation for the conflicts work. You do not believe the civil matters that your partners handle would be affected in any way. To insure there is no difficulty, you state that you would be willing to do either or both of the following: 1. Refrain from any compensation as Jury 2. Refrain from placing your name on any potential jurors. You also note that your opponent, who is the Commissioner. communications to incumbent, sat as Cynthia M. Cline, Esquire March 31, 1993 Page 3 Jury Commissioner_ concurrent to the time his brother was the Fayette County District Attorney. You state that he selected criminal jury panels which were used by his brother's office on a regular basis.- As far as you know, there_ _were no problems or questions concerning these juries. You offer this information only . to indicate some precedent for your position. You also note that there have been, to the best of your knowledge, no actions against. the Jury Commission., Based uponwthe above, you request an advisory from thi State Ethics Commission as to any potential conflicts of interest for either you personally or your. partners. Discussion: It is initially noted that your request for an advisory may only be addressed under the Ethics Law. Furthermore,, an Advice may only address the prospective conduct of the inquirer. To the extent you have inquired as to any potential conflicts of interests for your partners, such would be deemed a third party request which could not be addressed. An analysis of your position as "Conflicts Counsel" - far Fayette County, Pennsylvania, necessitates the conclusion that in that capacity, you are not a "public official" or "public employee" as defined in the Ethics Law, 65 P.S. 5402, and hence you are not subject to Section 3(a) of the Ethics Law pertaining to conflicts of interest. -See, Rogers v. State Ethics Commission, 80 Pa, Commw. 43, A.2d 1120 (1984). Additionally, the other position which you may prospectively _hold as Jury Commissioner would also not be a public office or position of public employment under the said definitions of the Ethics Law, so as to subject you to Section 3(a) of the Ethics Law in that capacity." This conclusion is based upon a review of the Commission Regulations under the definition of "public official," 51 Pa. Code 51.1. The Commission Regulations provide, in pertinent part, "the_ does not include judges and inspectors of elections, notary publics and political party officers." Id. at (ii). Although this list of exclusions does not specifically designate the position of Jury Commissioner, for purposes of the Ethics Law and the determination of applicability of the Ethics Law, the:. ministerial nature of the powers and duties of a Jury Commissioner are so comparable to those of these excluded positions that there would not appear to be any basis for extending the term "public official" to include a Jury Commissioner. Based upon the above, your inquiry may not be answered by the Ethics Law because neither of the two positions which you would be simultaneously holding would be a public office or position of public employment under the Ethics Law, so as to subj you t Section 3(a) of the Ethics Law. You are cautioned that this Advice must not be considered a blanket approval of your proposed simultaneous service. You are Cynthia M. Cline esquire March 31, 19 Page 4 ; advised to seek the advice of legal counsel with regard to your responsibilities under other laws as well as the Rules of Professional Conduct The- propriety of the proposed conduct has only been addressed under the Ethics Law; 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 they do not involve an interpretation of the Ethics Law. •Specifically not addressed herein is the County Code or the Rules of Professional Conduct. Conclusion: As one pf two appointed "Conflicts Counsels" for Fayette County, you are not a "public official" or "public ; employee" subJect to the provisions of the Ethics Law. Your prospec position As Jury Commissioner would also not be a aubli.c office , gr position of public employment under the Ethics 44 The thies 'Law would not apply to address the questions which -you iazve posed xega.rding simultaneous service as Conflicts Counsel for Fayette =bounty and as a Jury Commissioner, because neither of these positions would subject you to Section 3(a) of the Ethics Law. „astiy, the propriety of the proposed course of conduct has Duly 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. such. This letter is a public record and will be made available as Finally, if you disagree with 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. ry truly yours, Vincent J. Dopko, Chief Counsel