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HomeMy WebLinkAbout02-611 ConfidentialADVICE OF COUNSEL October 23, 2002 02 -611 Re: Conflict; Public Official /Public Employee; Member; General Assembly; Attorney; Law Firm; Clients; Business With Which Associated. This responds to your letter of September 20, 2002, by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., would present any prohibition or restrictions upon a Pennsylvania State Legislator who, in a private capacity, is employed as an associate in a law firm, with regard to representing clients that are governmental entities before any governmental agencies; and whether the Legislator must disclose his association with the law firm in communications made on behalf of such clients or during appearances made on behalf of such clients before any governmental agencies. Facts: As A for the B, you seek a confidential advisory on behalf of an unidentified Member of the Pennsylvania General Assembly ( "Legislator ") based upon the following submitted facts. In a private capacity, the Legislator is an attorney admitted to practice before the Pennsylvania State courts. The Legislator recently became employed as an associate with a private law firm ( "Firm "). You state that as an employee of the Firm, the Legislator receives compensation based upon a fixed salary plus an amount that reflects performance. You further state that the Legislator has no ownership interest in the Firm. Among the Firm's clients are governmental entities including a C, a D, and an E. You state that the E, which has facilities located in the Legislator s district, has asked the Firm to represent it in transactions with the Commonwealth. You pose the following five inquiries: 1. Whether the Legislator may represent the C, D, and E before any government agency; 2. Whether the Firm may represent the C, D, and E before any government agency; 3. Whether the Firm may charge the C, D, and E for services rendered by the Legislator; 4. Whether other attorneys in the Firm may charge the C, D, and E for professional services rendered; and Confidential Advice 02 -611 October 23, 2002 Page 2 5. Whether the Legislator must disclose his association with the Firm in any communication made on behalf of the C, D, and E or during any appearance before any government agency in representing these clients. Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (11), advisories are issued tote requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Member of the Pennsylvania General Assembly, specifically the B, the Legislator on whose behalf you have inquired is a public official as that term is defined under the Ethics Act. Section 1103(a) of the Ethics Act provides: §1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act as follows: §1102. 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. The term 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 of 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, stock company, receivership, trust or any legal entity organized for profit. Confidential Advice 02 -611 October 23, 2002 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. 65 Pa.C.S. §1102. Section 1103(j) of the Ethics Act provides as follows: §1103. Restricted activities (j) Voting conflict. - -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 made as otherwise provided herein. 65 Pa.C.S. §1103(j). The above provisions of the Ethics Acts shall now be applied to your first and fifth inquiries, which relate to the Legislator's conduct with respect to representing clients before governmental agencies, and disclosing his association with the Firm, a business with which the Legislator, as an employee, is associated. Section 1103(a) of the Ethics Act does not per se prohibit public officials /public employees from having outside business activities or employment. However, subject to certain exceptions delineated in the definition of "conflict or "conflict of interest" above, Section 1103(a) of the Ethics Act ordinarily applies to prohibit the public official /public employee from using the authority of his public position —or confidential information obtained by being in that position —for the advancement of his own private pecuniary benefit or that of a business with which he is associated or business client(s). Ordinarily, a public official /public employee with a conflict under the Ethics Act is required to abstain fully and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. However, in Co�rri an, Opinion 87 -001, the Commission addressed the question of whether the Ethics Act would prohibit a member of the General Assembly from voting in relation to a measure or bill pending before the Pennsylvania State Senate or the Confidential Advice 02 -611 October 23, 2002 Page 4 Pennsylvania House of Representatives when such measure or bill would affect the legislator's private interests. The Commission considered the following provisions of the Constitution of Pennsylvania: Privileges of Members Section 15. The members of the General Assembly shall in all cases, except treason, felony, violation of their oath of office, and breach of surety of the peace, be privileged from arrest during their attendance at the sessions of their respective Houses and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place. Constitution of Pennsylvania, Article II, Section 15. Vote Denied Members with Personal Interest Section 13. A member who has a personal or private interest in any measure or bill proposed or pending before the General Assembly shall disclose the fact to the House of which he is a member, and shall not vote thereon. Constitution of Pennsylvania, Article III, Section 13. In reviewing the above constitutional provisions and pertinent case law, the Commission held: The activities of a member of the General Assembly insofar as such relate to legislative actions, defined as the introduction, consideration, debating, voting, enactment, adoption or approval of legislation, are constitutionally controlled. Such legislative actions are therefore exempt from the purview of the State Ethics Act and the State Ethics Commission.... the application of the State Ethics Act to non - legislative activities [is] in no way affected by this opinion. Corrigan, Opinion 97 -001 at 4. In response to your first inquiry, you are advised that Section 1103(a) of the Ethics Act would not prohibit the Legislator on whose behalf you have inquired from representing the C, D, and E before any governmental agency, conditioned upon the assumptions that: (1) as indicated, the Legislator would not use any confidential information received through holding public office for a prohibited private pecuniary benefit; (2) the Legislator would not engage in actions other than "legislative actions' that would constitute the use of the authority of his /her public office as a legislator for the private pecuniary benefit of the Firm and /or its client(s); and (3) the Legislator would not use Commonwealth facilities, such as Commonwealth telephones, postage, staff, equipment, research materials, or other property, or use Commonwealth personnel, to conduct private business activities. Your second, third and fourth questions relate to the propriety of conduct by third parties, specifically, the Firm or other attorneys in the Firm. You are advised that the authority of the State Ethics Commission to issue an opinion /advice regarding a person's duties under the Ethics Act is limited by statute, to those persons who request it relative to their duties or to the appointing authority or employer of such persons at the request of the appointing authority or employer. Thus, an opinion /advice may only be Confidential Advice 02 -611 October 23, 2002 Page 5 issued as to the conduct of the Legislator who is a public official, but not the Firm or its private attorneys. In response to your fifth inquiry, the Ethics Act would not require the Legislator to disclose his association with the Firm in any communication made on behalf of the C, D, and E or during any appearance before any governmental agency. The question of whether such disclosure is required by the Rules of Professional Conduct is beyond the scope of the Ethics Act. This Advice is limited to addressing the applicability of Section 1103(a) of the Ethics Act. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Legislative Code of Conduct and the Rules of Professional Conduct. Conclusion: As a Member of the Pennsylvania General Assembly, specifically the 13, the Legislator on whose behalf you have inquired is a public official subject to the provisions of the Ethics Act. The portion of a legislator's activities constituting "legislative actions," defined as the introduction, consideration, debating, voting, enactment, adoption or approval of legislation, is not subject to the provisions of the Ethics Act or the jurisdiction of the State Ethics Commission. Under the submitted facts, Section 1103(a) of the Ethics Act would not prohibit the Legislator from representing the C, D, and E before any governmental agency, conditioned upon the assumptions that: (1) as indicated, the Legislator would not use any confidential information received through holding public office for a prohibited private pecuniary benefit; (2) the Legislator would not engage in actions other than "legislative actions" that would constitute the use of the authority of his /her public office as a legislator for the private pecuniary benefit of the Firm and /or its client(s); and (3) the Legislator would not use Commonwealth facilities or property or Commonwealth personnel to conduct private business activities. The Ethics Act would not require the Legislator to disclose his association with the Firm in any communication made on behalf of the C, D, and E or during any appearance before any governmental agency. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an 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, provided 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Confidential Advice 02 -611 October 23, 2002 Page 6 Any such appeal must be in writing and must be actually received at the Commission within thirty ( days of the date of this Advice pursuant to 51 Pa. Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel