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HomeMy WebLinkAbout88-662 LukeJohn R. Luke, Esquire Three Gateway Center 22nd Floor, North Wing Pittsburgh, PA 15222 Dear Mr. Luke: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 8, 1988 -662 Re: Conflict of Interest, Township Supervisors, Voting oz. Proposed Settlement of Litigation Instituted by. Former Employee Against Township and Supervisors Individually This responds to your letter of November 2, 1988, in which you requested advice from the State Ethics Commission. WTr the State Ethics Act presents any prohibition or upon second class township sup ~visors in vi appro " -e a proposed settlement of litigation instituted by a former employee against the township and against the individual supervisors. Facts: You state that a township has been sued by a former employee who has been suspended from duties for a period n 30 days relating to keeping accurate time of work. You then state that the employee has indicated that the conditions were intolerable, has treated the suspension as a dismissal and s sued the municipality and the public officials individually charging conspiracy and improper dismissal. You then advise that the insurance carrier who insures the municipality has suggested a settlement with the former employee wherein the insurance company would pay part of the damage and the municipality would pay the balance. After stating that the elected officials of the municipality are also involved in the suit as individual defendants, you inquiry as to whether these individuals may vote to effect the settlement and authorize payment of a portion of municipal funds which would exculpate the public officials. You restate the above inquiry that since the public officials have an inter93t in the outcome, may they vote on behalf of the municipality rcgi ding the possible settlement of this John R. Luke, Esquire: December 8, 1988 Page 2 litigation. In a telephonic communication on November 22, 1988, you advise that you represent these municipal officials, the municipality operates under Home Rule and you contemplate resolving this matter by having these public officials abstain. You further advise that only the public officials who were elected after this incident would vote on these matters and you conclude by asking whether they would have a conflict. Discussion: As members of the Home Rule Municipality, these individuals are public officials as that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code S1.1. Section 3(a) of the Ethics Act provides: F ^- 3. t' f—t cted 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). Under Section 3(a) quoted above, the State Ethics Commission determined that use of office by a public official to obtain c financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own person,1 advantage; Huff, Opinion 84 -015. In the instant matter, since the public officials whose conduct is in question will abstain as to the vote to settle the litigation, the precise question under the Ethics Act is whether their abstention in the matter would he implicated under Section 3(a). The Ethics Commis. pion has ruled that an abstention by a John R. Luke, Esquire December 8, 1988 Page 3 public official does not constitute a use of office under the Ethics . pct, Therefore, if only the officials who took office after Vie above incident voted and the public officials who are the suLje:t of the litigation would abstain at the public meeting, as well as noting their abstention of public record together with reason for their abstention, Section 3(a) of the Ethics Act world not be implicated under these facts and circumstances. Lastly, the propriety of the proposed conduct has only been addre.37....x under the Ethics Act; the applicability of any ')the:: s v'ltnte,, cods, ordinance, regulation or other code of conftct oth» than the Ethics Act has not been considered in that thy do an _ rater 'reL - ion o f thc C_ ..^t. .- ,n�1usion: As Home Rule Charter officials, these individuals ( 7Ar tun) is officials subject to the provisions of the State ;..:ics Act. Under the facts and circumstances outlined above, E., t r ��n 3(a) of the Ethics Act would not be implicated when public officials who are the subject of a law suit against thy: municipality and themselves individually would abstain relative to a possible settlement of that litigation. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 7 (9) (ii) , this Advice is a co.2. e1.': defense in any enforcement proceeding initiated by th,: Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclos truthfully all the material facts and committed tha ac .s complained of in reliance on the Advice given. 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of seivice of this Advice pursuant to 51 Pa. Code §2.12. ncereiy, Vincent \7. Dopko, General Counsel