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