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HomeMy WebLinkAbout80-039 MorrisBurton D. Morris, Esquire Baskin and Sears P.O. Box 1150 Harrisburg, PA 17108 Dear Mr. Morris: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 August 20, 1980 OPINION OF THE COMMISSION 80 -039 In your letter of July 9, 1980, you requested an advisory Opinion from the State Ethics Commission concerning the application of Section 3(e) of Act 170. You explained that two members of the law firm of which you are associated, Robert N. Hackett and Joan P. Feldman, served from 1974 until June 5, 1980, as special counsel to the Affirmative Enforcement Division of the Pennsylvania Human Relations Commission (PHRC). You stated that during the period -in question, Mr. Hackett and Ms. Feldman represented the Commi- ssion in a limited number of selected cases assigned to them by the Affirmative Enforcement Division. You further stated that both lawyers were compensated on an hourly basis. You specifically requested an Opinion from the Commission as to whether the employment of Mr. Hackett and Ms. Feldman by the Human Relations Commission limited, in any manner, the ability of your law firm to represent clients in matters before the Human Relations Commission. Section 3(e) of Act 170 prohibits former officials and public employees from representing any person, broadly defined in the Act, to include individuals, businesses, corporations, associations "on any matter before the govern- mental body with which he has been associated for one year after he leaves that body." It is the Commission's opinion that Mr. Hackett and Ms. Feldman are former public employees within the meaning of Section 3(e) of the Act and the pro- hibitions of that Section are applicable to them. Basically, the fact that the services of these indivi- duals were rendered pursuant to a service purchase contract with the PHRC in not determinative of the question of whether Burton D. Morris, Esq. August 20, 1980 Page 2 these persons were "employed by" this agency of the Common- wealth for purposes of the definition of "public employee." The question is, more importantly, whether these individuals were "employed by the Commonwealth" and in a position of trust as further delineated by the definition of "public employee." The absence of a common law relationship of master and servant between the PHRC and Feldman and Hackett is not significant. The following criteria must be considered, at least, in reviewing this question: (1) The history of compensated service in the capacity at issue, i.e., attorney; (2) the expectation of the individual in the capacity at issue for continued or further compensated services; (3) whether or not the compensated services are identical or similar to services that would ordinarily be performed by an elected or appointed official; (4) whether or not the-_ services performed are similar or identical to those ordinar- ily performed by a full -time employee; (5) the degree to which the individual performing services is supervised by the agency; (6) whether the individual performs compensated services for a number of agencies; and (7) whether or not the compensated services are such that in the discretion of the Commission they implicate the "public trust" and are thus within the scope of the concerns that Act 170 seeks to protect. Here the facts clearly indicate this relationship with the PHRC was a long- standing and significant one. It was not limited to one specific case, for example, of limited duration. The work performed by these persons was substan- tially equivalent to that which would typically be performed by regular, full -time PHRC attorneys. To allow these individ- uals to escape application of the Ethics Act on the slim basis that a piece of paper - -their service purchase contract- - somehow distinguishes them from these regular employees who are bound by the restrictions of the Ethics Act is unreason- able. This is especially true where little, if any, substan- tive difference is apparent in the position of public trust enjoyed by Feldman and Hackett and that held by such regu- lar, full -time staff attorneys. Indeed, it could be cogently argued that in some cases, not applicable here, "in-house" attorneys are accorded less authority than attorneys on special service purchase contracts. However, it is not necessary to apply this possible analysis to hold that Feldman and Hackett in the circumstances presented here are former "public employees" to whom the prohibitions of Section 3 of the Act would apply. Burton D. Morris, Esq. August 20, 1980 Page 3 Having decided this, the question of the extent of the prohibition must be addressed. Former decisions of the Commission indicate that generally: (1) Personal appearance before the governmental body is prohibited for the one -year period. (Cases cited above and also Widoff, 79 -055; Berger - Beaser, 79 -060; Adler, 79 -043; Swartz, 79 -025; and Bucciarelli, 79 -059) (2) Attempts to influence the governmental body are prohibited (see Covill - Ringler and Cutt) for the oneyear period. (3) A former public employee or official is prohibited by the Ethics Act and applicable provisions of the Code of Professional Responsibility from partici- pating in any case over which he or she has super- vision, direct involvement or responsibility while with the governmental body. .(4) Members of a former public employee's or official's firm are not barred from representing clients before the governmental body with whom the former public employee /official was associated (Berger). (5) General informational inquiries, on matters which are subject to inquiry by the public are not pro- hibited. (Opinions 79 -058, Peffer; 79 -041, Covill - Ringler; 79 -023, Cutt) (6) Former public employees /officials are not barred from generally utilizing the knowledge and expertise gained from their tenure as public employees /officials except as set forth above. (7) Appearance in a third forum, such as state or federal Court however is not prohibited. (Berger and Rendell 79 -007) Thus, Feldman and Hackett are former "public employees" subject to the prohibition set forth in Section 4 of the Ethics Act and the scope of this prohibition is as discussed above. Pursuant to Section 7(9)(i), this Opinion is a complete defense in any enforcement proceeding initiated by the Burton D. Morris, Esq. August 20, 1980 Page 4 Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requester 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 s. as such. PJS /af cc: Robert S. Mirim, Esq. Human Relations Commission AUL J MITH Chairmadi UPDATE: A Commonwealth Court ruling (434 A.2d 1327) on similiar factual circumstances should be reviewed. Former Commonwealth employees or officials who are attorneys may practice law before the governmental body with which he /she has been associated regardless of the Section 3(e) (one year) prohibition. The court ruling did not specificially address this particular opinion, but the factual circumstances may be applied to it. This Common- wealth Court opinion was affirmed, without further opinion by the Pennsylvania Supreme Court.