HomeMy WebLinkAbout22-540 Domenick
PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
October 11, 2022
To the Requester:
Debra Domenick, Esquire
22-540
Dear Ms. Domenick:
This responds to your email dated September 21, 2022, by which you requested an advisory
from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issue
presented below:
Issue:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et
seq., would impose prohibitions or restrictions upon an individual serving as a County
Commissioner for Lackawanna County(the “County”), who in a private capacity is an
attorney, with regard to accepting a referral fee from a law firm (the “Firm”), where: (1)
(1) after being elected as a County Commissioner in 2019, the individual referred a client’s
(the “Client”) personal injury case to the Firm; (2) the Client’s personal injury case arose
from injuries sustained by the Client while a passenger on a bus; (3) in 2022, the Client
contacted the Firm for representation in a personal injury case against the Housing
Authority of the County of Lackawanna (the “County Housing Authority”) for injuries
sustained while in a County Housing Authority apartment; and (4) because the Client
contacted the Firm for representation in the County Housing Authority case due to the
Firm’s representation of the Client in the personal injury case that the individual referred
to the Firm, the Firm considers the County Housing Authority case to be a referral from
the individual, thereby entitling the individual toa referral fee.
Brief Answer: NO. The Ethics Act would not prohibit the individual from accepting a
referral fee from the Firm in relation to the Client’s personal injury case against the County
Housing Authority.
Domenick, 22-540
October 11, 2022
Page 2
Facts:
You request an advisory from the Commission based upon submitted facts, the material
portion of which may be fairly summarized as follows.
In 2019, you were elected as a County Commissioner for Lackawanna County (the
“County”), Pennsylvania. In a private capacity, you are an attorney, and you practice law in
Scranton, Pennsylvania. After you were elected as a County Commissioner, you referred some
personal injury cases to other lawyers or law firms. In pertinent part, you referred the personal
injury case of a client you represented(the “Client”) to a local law firm (the “Firm”). The Client’s
personal injury case arose from injuries that she sustained while she was a passenger on a bus.
In 2022, the Client sustained significant bodily injuries when she fell through the interior
steps of her apartment, which is located in one of the developments of the Housing Authority of
the County of Lackawanna (the “County Housing Authority”). The Client subsequently contacted
the Firm for representation in a personal injury case against theCounty Housing Authority.
Because the Client contacted the Firm for representation in the County Housing Authority case
due to the Firm’s representation of her in the bus passenger case that you referred to the Firm, the
Firm considers the County Housing Authority case to be a referral from you, thereby entitling you
to a referral fee.
The County Housing Authority is an entity separate from the County, and it does not fall
under the authority of the County Commissioners. The County Commissioners do not establish,
implement, or enforce any policies or procedures relative to the County Housing Authority. The
County Commissioners’ only duty that pertains to the County Housing Authority is the duty to
appoint the Members of the Board of the County Housing Authority. The County Housing
Authority has its own insurance, and the County Housing Authority Board does not vote on the
potential settlement of personal injury lawsuits filed against the County Housing Authority.
Based upon the above submitted facts, you ask whether the Ethics Act would permit you
to accept a referral fee from the Firm in relation to the Client’s personal injury case against the
County Housing Authority.
Discussion:
Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10),
(11), advisories are issued to the requester based upon the facts that the requester has submitted.
In issuing the advisory based upon the facts that the requester has submitted, the Commission does
not engage in an independent investigation of the facts, nor does it speculate as to facts that have
not been submitted. It is the burden of the requester to truthfully disclose all material facts relevant
to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the
requester has truthfully disclosed all material facts.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted activities
Domenick, 22-540
October 11, 2022
Page 3
(a) Conflict of interest. -- No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
(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(a), 1103(j).
The following terms related to Section 1103(a) 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.
Domenick, 22-540
October 11, 2022
Page 4
“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, joint stock company,
receivership, trust or any legal entity organized for profit.
“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(a) of the Ethics Act, pertaining to conflict of interest, restricts public officials
and public employees in their public capacities, not their private capacities. Subject to the statutory
exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S.
§ 1102, a public official/public employeeis prohibited from using the authority of public office or
confidential information received by holding such a public position for the private pecuniary
(financial) 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. The use
of authority of office is not limited merely to voting but extends to any use of authority of office
including, but not limited to, discussing, conferring with others, and lobbying for a particular
result. Juliante, Order 809.
In each instance of a conflict of interest, a public official/public employee would be
required to abstain from participation, which would include voting unless one of the statutory
exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure
requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting
conflict.
Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics Commission, 610
Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the Ethics Act, a public
official/public employee:
… must act in such a way as to put his \[office/public position\] to the
purpose of obtaining for himself a private pecuniary benefit. Such
directed action implies awareness on the part of the \[public
official/public employee\] of the potential pecuniary benefitas well
as the motivation to obtain that benefit for himself.
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics Act, a
public official/public employee “must be consciously aware of a private pecuniary benefit for
himself, his family, or his business, and then must take action in the form of one or more specific
steps to attain that benefit.” Id., 610 Pa. at 528, 22 A.3d at 231.
Domenick, 22-540
October 11, 2022
Page 5
Conclusion:
In applying the above provisions of the Ethics Act to the instant matter, you are advised as
follows.
As a County Commissioner, you are a public officialsubject to the provisions of the Ethics
Act. Your law practice is a business with which you are associated in your private capacity.
The Ethics Act would not prohibit you, in your private capacity as an attorney, from
accepting a referral fee from the Firm in relation to the Client’s personal injury case against the
County Housing Authority. In your public capacity as a County Commissioner, you would have
a conflict of interest with regard to participating in matters pertaining to the County Housing
Authority if: (1) you would be consciously aware of a private pecuniary (financial) benefit for
yourself or your law practice; (2) your action(s) would constitute one or more specific steps to
attain that benefit; and (3) neither of the statutory exclusions to the definition of “conflict” or
“conflict of interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable.
Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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 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 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.
Any such appeal must be in writing and must be actually receivedat the Commission within
thirty (30) 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.
Respectfully,
Bridget K. Guilfoyle
Chief Counsel