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HomeMy WebLinkAbout79-537 LeymarieTO: STATE ETHICS COMMISSION P. 0. Box 1179 Harrisburg, PA 17108 ADVICE OF CHIEF COUNSEL Edward Leymarie; Jr. Borough of Elwood City 525 Lawrence Avenue Elwood City, PA 16117 October.15, 1979 RE: Legal Defense Fees as Personal Financial Gain, Official Immunity Act of 1978 FACTS: On September 26, 1979, Edward Leymarie, Jr., Esquire, Solicitor for the Borough of Elwood City, followed up his telephone call of 9/26/79 with a letter requesting advice as to whether councilmen named in a lawsuit may vote on whether the borough shall pay for their legal defense. The Elwood City Borough Council voted 4 -3 to fire Mary Ann Fleo, Borough Secretary of the Borough of Elwood City. On September 13, 1979, Mary Ann Fleo filed a complaint, Fleo v. Gatto, et al., in the United States District Court for the Western Federal Judicial District, against Ricardi Gatto, President of the Borough Council, and others. The suit alleged libel and civil rights violations. One of the parties named in the suit is the Borough of Elwood City, Pennsylvania. Under Section 303(b) of Act 330 of 1978, "when an action is brought against an employee of a political subdivision for damages on account of an injury to a person or property, and it is not alleged'that the act or omission of the employee which gave rise to the claim was within the scope of his office or duties, the political subdivision may...defend the action...." Borough council will therefore vote on whether it should pay for the defense of the suit as the individuals named. Presumably, the borough will defend itself out of its municipal funds. it-6 3 Edward Leymarie , Jr. October 17, 1979 page 2 DISCUSSION: The general question before the Commission is may the councilmen named in this lawsuit vote on whether the borough must pay for and defend these officials. Section 3(a) of the Ethics Act prohibits the use of public office for "financial gain." The Act 170 issue is therefore whether the receipt of funds for defense of alleged torts related to one's duties as a public official or public employee constitutes "financial gain." While "income" is defined very broadly to include "any money or thing of value received," we hold that financial gain or income does not include legal defense to actions related to one's official duties, even though not alleged to be within the scope of these legal duties. Where the torts alleged to be civil wrongs unrelated to official duties, the public offi- cials who are defendents may not vote on the matter of representation. Here the torts alleged are related to public officials' duties, though, being intentional torts, are not within the scope of these duties. In recent years_ it has become increasingly popular to sue public officials. It will undoubtedly become more popular in the future. At the least, the public official or public employee accused should have a voice and vote on the payment of his or her legal fees. The Commission takes no position whatsoever on the merits of this suit. Pursuant to Sections 7(9)(ii), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the advice given. A personal appearance before the Commission and a formal opinion will be issued upon your request, if you feel this reply does not suffice. This letter is a public record and will be made available as such. Edward Leymarie, Jr. October 17, 1979 page 3 CONCLUSION: Public officials or public employees accused of torts allegedly done outside of their scope of employ- ment, but related to their official duties, are not required by Act 170 to abstain from the discussion on whether borough funds should be expended for their defense. Where the torts alledged do not relate to official duties, but to personal interests, the public official shall not participate in or vote on representa- tion by the borough on the defense of the suit. DAVID RITTENHOUSE MORRISON