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HomeMy WebLinkAbout02-573-S ConfidentialADVICE OF COUNSEL April 18, 2003 Re: Conflict; Public Official /Employee; A; Supervisor B; County; Mental Health /Mental Retardation Program; Children and Youth Services; Attorney; Private Practice of Law; Supplemental Advice. This responds to your letter of March 18, 2003, by which you requested supplemental confidential advice from the State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., an A for a county mental health /mental retardation ( "MH /MR ") program, who in his private capacity, is an attorney, would be restricted by the Ethics Act with regard to providing legal representation to clients obtained through a legal services program if such clients: (1) are monitored by the county children and youth service ("CYS"); (2) are receiving services at MH /MR from other MH /MR employees; or (3) are in an adversarial posture as to clients of the MH /MR program. Facts: You initially requested a confidential advisory from the State Ethics emission by letter of June 12, 2002. In response to your initial request, Confidential Advice, 02 -573 was issued to you on July 17, 2002, which Confidential Advice is incorporated herein by reference. You now request a supplemental confidential advisory. You state that the facts submitted in your initial request remain unchanged with the following exception: you accepted the position of Supervisor B with the Out- Patient Department of the MH /MR Program of County C ( "County "), but have since returned to the position of A for the County's MH /MR Program. You state that as an A, you are not responsible for supervising other employees. In your private capacity as an attorney, you are interested in participating in Program D of Legal Service Organization E. You state that it is not uncommon for the clients of Legal Service Organization E and Program D to be clients of MH /MR. Such clients frequently require assistance with Social Security benefits, bankruptcy and child custody disputes, but not child dependency hearings initiated by the County's CYS. You are interested in expanding your law practice to include these areas of the law, but have yet to do so. You state that since receiving Confidential Advice, 02 -573, you have refrained from accepting any individual as a legal client who has advised you that he or she is or has been involved with the County's MH /MR or CYS. 02 -573 -S Confidential Advice 02 -573 -S April 18, 2003 Page 2 You state that based upon a discussion with a Commission staff member, it is your understanding that because you have relinquished the position of Supervisor B, the concerns expressed in Confidential Advice, 02 -573 have been significantly diminished insofar as both the extent of your authority as a public employee and the amount of confidential information to which you have access have been reduced. You seek confirmation of two other "understandings." The first is that you would not transgress the Ethics Act if you would represent as legal clients individuals: (1) being monitored by the County's CYS; (2) receiving services at the County's MH /MR from other MH /MR employees; or (3) in an adversarial posture as to clients of the MH /MR program. The second is that you would not transgress the Ethics Act unless you would solicit one or more of your mental health clients to become your legal clients or would use confidential information acquired in the course of your responsibilities as an A concerning one or more of your mental health clients to the advantage of a legal client, thereby advancing your law practice. Finally, you ask for a pragmatic response that: (1) presumes your understanding that the Ethics Act would restrict you in your capacity as a public employee, not as an attorney; and (2) provides illustrations of prohibited conduct beyond those discussed above. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the 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. Having incorporated by reference Confidential Advice, 02 -573, your most recent inquiry shall now be addressed. First, as to your reference to an informal discussion with Commission staff, staff members do not make rulings over the telephone, and the informal guidance of staff has no legal effect. You are advised that the fact that you have returned to the position of A would not in any way diminish the significance of the restrictions set forth in Confidential Advice, 02 -573, which restrictions would apply to you in either position as was clearly stated in Confidential Advice, 02 -573. However, it would be fair to say that conflicts of interest under the Ethics Act would probably arise far less frequently for you as an A than as a Supervisor B, due your submitted lack of supervisory duties as an A. You seek confirmation of two "understandings." The first is that you would not transgress the Ethics Act if you would represent as legal clients individuals: 1 being monitored by the County's CYS; (2) receiving services at the County's MH/MR from other MH /MR employees; or (3) in an adversarial posture as to clients of the MH /MR program. The second is that you would not transgress the Ethics Act unless you would solicit one or more of your mental health clients to become your legal clients or would use confidential information acquired in the course of your responsibilities as an A concerning one or more of your mental health clients to the advantage of a legal client, thereby advancing your law practice. In considering your first "understanding," you are advised that the Ethics Act would not apply to restrict you as an attorney from providing legal services to any of the above categories of clients. However, Section 1103(a) of the Ethics Act would prohibit you from using the authority of your public position as an A with the County, or Confidential Advice 02 -573 -S April 18, 2003 Page 3 confidential information received by being in such public position, to solicit clients for your private law practice or to otherwise advance your private law practice. Under Section 1103(a), you would have a conflict of interest in your capacity as an A in matters before you as an A involving your legal client(s). In each instance of a conflict, you would be required to abstain as an A and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Your second "understanding," specifically that you would not transgress the Ethics Act unless you would solicit one or more of your mental health clients to become your legal clients or would use confidential information acquired in the course of your responsibilities as an A concerning one or more of your mental health clients to the advantage of a legal client, is incorrect because it is too limited. There are many other ways to use the authority of office in contravention of Section 1103(a), some of which were noted in the prior Advice (such as the use of governmental facilities to conduct private business activities, Freind, Order 800; Pancoe, Opinion 89 -011). The law does not limit the factual scenarios under which a conflict of interest may arise, but rather, sets forth the elements of a conflict of interest (discussed in detail in the prior Advice issued to you), which elements may arise in virtually unlimited factual scenarios. There are also prohibitions as to improper influence as set forth in Sections 1103(b) and 1103(c) of the Ethics Act, as was noted in the prior Advice. For examples of factual scenarios in which violations of the Ethics Act have been found, you may wish to peruse the Commission's "e- library," which may be accessed at the Commission's web site (www.ethics.state.pa.us). 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 Rules of Professional Conduct, the County Code, or the Mental Health and Mental Retardation Act of 1966. Conclusion: As an A for the County C ( "County ") Mental Health ( "MH /MR ") rogr�am, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The Ethics Act would not apply to restrict you in your private capacity as an attorney from providing legal representation to individuals: (1) being monitored by the County's CYS; (2) receiving services at the County's MH /MR from other MH /MR employees; or (3) in an adversarial posture as to clients of the MH /MR program. However, your private law practice would be considered a business with which you are associated. Section 1103(a) of the Ethics Act would prohibit you from using the authority of your public position, or confidential information received by being in your public position, to solicit clients for your private law practice or to otherwise advance your private law practice. Pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in your capacity as an A in matters before you as an A involving your legal client(s). In each instance of a conflict, you would be required to abstain as an A and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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. Confidential Advice 02 -573 -S April 18, 2003 Page 4 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 received at 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. Sincerely, Vincent J. Dopko Chief Counsel