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HomeMy WebLinkAbout03-592-S PanzerThomas E. Panzer, Esq. 748 Longstreth Road Warminster, PA 18974 Dear Mr. Panzer: ADVICE OF COUNSEL November 25, 2003 03 -592 -S Re: Former Public Official; Section 1103 (g ); Township; Supervisor; Solicitor; Zoning Hearing Board; Legal Representation; Supplemental Advice; Shaulis Decision. This responds to your letter of October 21, 2003, by which you requested supplemental advice from the State Ethics Commission. Issue: Whether under the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., a township supervisor who previously served as solicitor to a zoning hearing board may once again serve as solicitor to the zoning hearing board immediately upon completion of his term as a township supervisor. Facts: You initially requested an advisory from the State Ethics Commission by rffer of August 21, 2003. In response to your initial request, Advice, 03 -592 was issued to you on September 25, 2003, which Advice is incorporated herein by reference. In your supplemental request, you ask whether Shaulis v. Pennsylvania State Ethics Commission, Pa. , A.2d. 123 (2003), which was decided by the Supreme Court on OctoB 1, 20 as any effect upon Advice of Counsel, 03 -592. You limit your inquiry to the issues within the jurisdiction of the State Ethics Commission. Discussion: In your original request, you asked whether you could return to your former pose ikon as Solicitor to the Warminster Zoning Hearing Board immediately after the expiration of your term as Township Supervisor for Warminster Township ( "Township "). You specifically inquired whether such conduct would violate Section 1103(g) or any other section of the Ethics Act or any other applicable law. Advice, 03 -592 initially determined that as a Township Supervisor, you would be considered a "public official' as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The Advice then determined that upon termination of service with the Township, you would become a "former public official" subject to Section 1103(g) of the Ethics Act. Panzer, 03 -592 -S November 25, 2003 Page 2 You were advised that the governmental body with which you would be associated upon termination of public service would be the Township in its entirety, but would not extend to the Zoning Hearing Board, which would be considered a separate governmental body. You were further advised that to the extent the Township would be involved in Zoning Hearing Board matters, as Solicitor for the Zoning Hearing Board, Section 1103(g) of the Ethics Act would prohibit you from engaging in certain activities including, but not limited to, making personal appearances before the Township and submitting documents containing your name to the Township. The Advice stated that pending the Supreme Court's ruling in Shaulis v. State Ethics Commission, 739 A.2d 1091 (Pa. Commw. 1999), it was the view of the State Ethics Commission that Section 1103(g) would restrict you from the representation of clients for promised or actual compensation before the Township for one year following your termination of employment with the Township, even if such representation would constitute the practice of law. After the issuance of Advice of Counsel, 03 -592, the Pennsylvania Supreme Court, on October 1, 2003, issued Shaulis v. Pennsylvania State Ethics Commission, Pa. 833 A.2d. 123 (2003). In Shaul's, supra, a divided Supreme Court affirmed th Order o�fhe Commonwealth Court, and held that Section 1103(g) of the Ethics Act was unconstitutional, as violative of Article V, Section 10(c) of the ennsylvania Constitution, which provides that the Supreme Court has the exclusive authority to regulate the conduct of an attorney insofar as it constitutes the practice of law, to the extent that Section 1103(g) applies to former government employees who are also attorneys. Id. In light of Shaulis, supra, given that as Solicitor for the Zoning Hearing Board, you would be engaged in the practice of law, the restrictions of Section 1103(g) of the Ethics Act would not apply to you. Lastly, 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 Second Class Township Code or the Rules of Professional Conduct. Conclusion: As a Supervisor for Warminster Township ( "Township "), you would be considered a "public official' as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with the Township, you would become a "former public official." In light of Shaulis v. Pennsylvania State Ethics Commission, Pa. 833 A.2d. 123 (2003), given that as Solicitor for the Zoning Hearing Board, you would engaged in the practice of law, the restrictions of Section 1103(g) of the Ethics Act would not apply to you. Act. The propriety of the proposed conduct has only been addressed under the Ethics Further, should service be terminated, as outlined above, the Ethics Act would require that a Statement of Financial Interests be filed by no later than May 1 of the year after termination of service. 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. Panzer, 03 -592 -S November 25, 2003 Page 3 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 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