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HomeMy WebLinkAbout88-592 HerlandsScott A. Herlands, Esquire 313 Penn Avenue Scranton, PA 18503 Dear )Lr . Herlands: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 29, 1988 88 - •592 Re Conflict of Interest, Township Supervisor, Surcharge Action, Representation by Solicitor This responds to your letter of May 9, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act would allow the township solicitor or private counsel at township expense to represent supervisors in a surcharge action instituted by the auditors regarding the propriety of mileage reimbursements and the receipt of health care benefits. Facts: As the solicitor for Overfield Township, you request advice concerning a matter in the township regarding the legal representation of supervisors who are subject to a surcharge in two separate incidents. The first matter concerns a surcharge by the township auditors against supervisors John Manglaviti and Howard Miller for taking mileage reimbursements in their capacity as roadmaster and assistant secretary /treasurer which were disallowed. The second matter concerns the township auditors surcharge of supervisors John Manglaviti, Howard Miller and William Hnatko for receiving Blue Cross /Blue Shield health bonefits at township expense. In both of these instances you request advice as to whether you as solicitor may defend the supervisors or whether the township is obligated to pay th ^ir legal representation should they retain private counsel. Scott A. Herlands, Esquire June 29, 1988 Page 2 Discussion: As supervisors for Overfield Township, these individuals are public officials within the definition of that term as set forth in the Ethics Act and the regulations of the Commission. 65 P.S. §402; 51 Pa. Code X1.1. As such, their conduct is subject to the provisions of the Ethics Act. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Section 3(a) basically provides that a public official or employee may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law, Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. The question to be determined under Section 3(a) of the Ethics Act is whether your representation as solicitor or the representation by private counsel at township expense of these supervisors in the surcharge action transgresses Section 3(a) of the Ethics Act quoted above. Initially, the Commission has determined that the representation by the township solicitor or representation paid by township funds is financial gain to the individual receiving the representation. Szvmanowski, Opinion 87 -002. The resolution of this matter must turn upon whether Scott A. Herland Esquire June 29, 1988 Page 3 such representation relates to defending the supervisors relative to the proper exercise of public office or whether the representation relates to an action by the supervisor relative to official misconduct or conduct that is personal or private in nature to the supervisor(s). The Commission has addressed the general issue of legal representation in two opinions: Puqliese, Opinion 84 -018 and Szzmanowski, supra. However, the foregoing two opinions involve fact situations which are dissimilar to the instant matter. In Puqliese, supra, the Commission addressed the question as to whether representation was proper in a situation where the township supervisors were surcharged regarding the construction of a sports field and the repair of various township facilities. The specific nature of that surcharge related to excessive costs in completing the projects over original estimates; it was argued that the excess costs might have been avoided if the project was advertised and competitive bids were sought. In that case, the Commission determined that the supervisors were entitled to representation noting that the legal defense arose out of actions taken by the supervisors in their official capacity. There was no allegation in that case that the supervisors had taken any official action which would enure to their personal or private benefit; the sole basis of that surcharge action was whether the supervisors acted improvidently by not advertising the projects for competitive bids. Contrary wise, the Commission in Svzmanowski, supra, determined that a township supervisor could not obtain legal representation at township expense concerning a suit instituted by him against the township regarding the fixing of his salary. In the latter opinion, the Commission opined that the suit did not arise out of any official action on the part of the supervisor but was rather a personal action by him regarding the fixing of his salary which had no authorization in the Second Class Township Code. The Commission concluded under those circumstances that the supervisor was not entitled to the legal representation at township expense. The facts in the instant matter involve two situations which fall somewhere between the straightforward cases of Puqliese, supra, which involved official action by a supervisor without any element of personal or private benefit and Svzmanowski, supra, which involved a personal action concerning the fixing of the supervisor's salary. In the instant matter, the action relates to representation for allegedly improper mileage reimbursement and township paid medical benefits. Although the generalized provision of the Second Class Township Code of 1933, P.L. 103, Art. V, Section 582, as amended 53 P.S. 65582, which delineates the duties of a solicitor, does Scott A. Heriands, Esgv rF June 29, 1988 Page 4 not address this question, decisional law is instructive on the question of whether certain actions of a supervisor are deemed as official acts which would be subject to legal representation or whether those actions are private or personal nature which would require private representation that could not be at township expense. In Roofner's Appeal, 81 Pa. Super. 482, A.2d _ (1923), the Court determined that it was inappropriate for township supervisors to receive legal representation at township expense concerning their indictment on a charge of unlawfully neglecting and refusing to keep up a certain township road which had become unsafe and dangerous for travel. The court in deciding that the supervisors were charged with official misconduct and hence not entitled to representation at township expense, reasoned as follows: "the power of a municipality or its appropriate officers to employ an attorney is limited to those matters in which the municipality has some official duty or which may probably be said to affect its interests. An attempted employment of an attorney in a matter in connection with which the municipality has no official duty, or which does not fall within the duties of the board or official making the contract of employment, does not render the municipality liable to the attorney for his compensation: Dillon. on Municipal Corporations, Vol. 2, paragraph 824, at page 1246. It is a fundamental principle that public funds shall not be used for private purposes. The offense for which appellants were indicted was a personal one: Com. v. John Meany, 8 Pa. Superior Ct. 224. Their obligation to pay their counsel was personal. Counsel fees and other expenses incurred by public officials in defending criminal charges, or charges of official misconduct, are incurred for a private purpose and cannot, in the absence of statutory provision therefor be paid from public funds. Scott A. Herlands, Esquire June 29, 1988 Page 5 When one accepts a public office he assumes the risk of defending himself even against unfounded accusations at his own expense. 81 Pa. Super. at 484, 485. In the instant matter, it would appear that the surcharge action of the auditors which is based upon the alleged receipt of improper mileage reimbursement or township paid medical benefits might be classified as rising to the level of official misconduct; certainly, their actions may be considered as personal in that they have received money or benefits to which they allegedly are not entitled. The foregoing is clearly distinguishable from Pugliese, supra, which did not involve actions of supervisors which would enure to their personal benefit. The foregoing is also distinguishable from Silver v. Downs, 493 Pa. 50, 425 A.2d 359 (1981) which allowed representation by a solicitor in a recall action against two members of the board of supervisors. Under Section 3(a) of the Ethics Act, since the supervisors are being surcharged for allegedly receiving improper mileage reimbursement and township paid medical benefits, their action is classifiable as personal in nature, possibly rising to the level of official misconduct, and, therefore, not subject to representation by the township's solicitor or private representation at township expense. Conclusion: The supervisors for Overfield Township are public officials subject to the provisions of the State Ethics Act. Under the facts and circumstances outlined above and the legal analysis thereto, Section 3(a) of the Ethics Act would not authorize a township solicitor or allow township supervisors to receive private representation at township expense in a surcharge action instituted by auditors relating to allegedly impz'per mileage reimbursements and township paid medical expenses. Pursuant to Section 7(9)(ii), this Advice is a cc,-lpie defense in any enforcement proceeding initiated b y t.' c. Commission, and evidence of good faith conduct in any other civ:1 or criminal proceeding, providing the requestor has disrloor truthfully all the material facts and committed thr actcs complained of in reliance on the Advice given. This letter is a public record and will be made availabl. as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appear before the Scott A. Herlands, Esquire June 29, 1988 Page 6 Commission will be scheduled and a former Opinion from the Commission will be issued. Any such appeal must be made, '.n writing, to the Commission within 15 days of service of th Advice pursuant to 51 Pa. Code §2.12. Sincerely, 0 00 - 0 Vincent J. Dopko, General Counsel