McGill, Christopher M. and Randolph J. Stephens - Ruling, November 27, 1996
Ruling, November 27, 1996
STATE OF NEW YORK : ADIRONDACK PARK AGENCY
In the Matter of
Proceedings before the
Adirondack Park Agency
Christopher M. McGill and Randolph J. Stephens
ADMINISTRATIVE LAW JUDGE
Enforcement File No. E94-299
Introduction and Background
The enforcement hearing in the above captioned proceeding commenced on November 21, 1996, having been adjourned from September 17, 1996. At this proceeding, Barbara Rottier, Esq. represented the Adirondack Park Agency ("APA" or "the Agency"), John Wilkins, Esq. represented the respondents, and Lawrence Weintraub, Esq. of the law firm Bartlett, Pontiff, Stewart and Rhodes, P.C. represented the intervenor Mr. Richard Sampson. As part of the discussion on preliminary matters, Mr. Wilkins made a motion to disqualify Mr. Weintraub from these proceedings because a partner in the Bartlett law firm, Thomas A. Ulasewicz, Esq. served as the Executive Director of the Agency when enforcement proceedings were commenced against Mr. McGill. Noting the lateness of the motion and the seriousness of the relief sought, I requested that Mr. Wilkins make his motion in writing.
On November 22, 1996, Mr. Wilkins personally provided the parties and me with a copy of his motion papers consisting of an affidavit of service, a notice of motion, an attorney's affidavit in support of the motion to disqualify a law firm, and attachments comprised of a copy of 73 of the Public Officers Law and Opinion No. 90-14 of the State's Ethics Commission. While I set a schedule to provide an opportunity for Mr. Weintraub and the Agency to respond and for Mr. Wilkins to submit a reply, having reviewed the papers submitted by Mr. Wilkins, I find that the motion is not sustainable and this proceeding is not the proper forum to disqualify an attorney. Therefore, I deny the motion to disqualify Mr. Weintraub without the need for the submission of additional papers on behalf of any of the parties.
Mr. Wilkins cites to 73(10) of the Public Officers Law ("POL") in support of his motion to disqualify Mr. Weintraub. POL 73(10) provides, in pertinent part, that nothing in this section of law prevents a firm in which a former or present state employee is a member from appearing before an agency on a matter in which the state employee was involved so long as that employee does not share in the net revenues resulting from that work. While not cited by Mr. Wilkins, POL 73(8) prohibits a former state employee from representing a client in a matter that he/she was directly involved in while in state service. Mr. Wilkins has not presented any evidence suggesting that Mr. Ulasewicz was directly involved in the matters that concern us in this proceeding. Assuming he was, while he would be prohibited from engaging in any work concerning this matter or deriving certain revenues resulting from the firm's representation, his associates and partners would not be so barred. The very opinion that Mr. Wilkins cites in support of his motion states this proposition:
Finally, an entire firm is not disqualified from appearing, practicing or representing any person before a State agency on the basis of the disqualification of one of its members, so long as net revenues derived from such appearances, etc., are distributed in accordance with this Opinion.
State Ethics Opinion 90-14. See also, Opinion Atty. Gen. 280 (1972).
The cited opinion also refers to the Canon of Ethics, DR 9-101(B) which provides that a lawyer shall not represent a client in connection with a matter he/she was previously personally and substantially involved in as a public employee. However, this disciplinary rule permits others in the same firm to take on such representation as long as the former state employee is effectively screened, does not derive a portion of the fees and there is no appearance of impropriety.
Because Mr. Wilkins' own papers do not support his premise, I do find that there is no basis for his motion and do not wish to waste resources of the parties in further discussion and review of this motion. In addition, the purpose of this proceeding is to create a record for review by the Agency enforcement committee regarding alleged violations of the APA Act. If any party wishes to pursue the alleged propriety of Mr. Weintraub's representation, he or she should seek a forum more appropriate than this one. See, Ruling In the Matter of an Application for permits to operate and construct a Construction and Demolition Debris Landfill by 4-C's Development Corporation, DEC Administrative Law Judge Daniel P. O'Connell (July 11, 1996; July 31, 1996).
At the conclusion of the hearing on November 22, 1996, I ruled that the Agency is to amend and re-serve its Notice of Alleged Violation to address its current allegations and the relief sought. From service of the amended notice, the respondents will have thirty days to serve their amended answers. During that period, I will consult with the parties as to dates to reconvene. During the Agency staff's deliberations on the relief it seeks in these proceedings, it may be productive to engage in discussions with the other parties to see if a resolution can be reached without further adjudication. If the parties desire, this office is prepared to render assistance in such circumstances.
By: Helene G. Goldberger
Administrative Law Judge
Dated: Albany, New York
November 27, 1996
TO: Barbara Rottier, Esq.
John Taylor Wilkins, Esq.
Lawrence Weintraub, Esq.