HomeMy WebLinkAbout94-632 StewartDear Mr. Stewart:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
December 2, 1994
Arthur J. Stewart, Esquire
Swanson, Bevevino and Millin, P.C.
P.O. Box 97
311 Market Street
Warren, PA 16365
94 -632
Re: Conflict, Public Official /Employee, Township Supervisor, Use
of Authority of Office, SEC Investigation, Township Paid Legal
Representation.
This responds to your letter of October 26, 1994 in which you
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon a township supervisor
with regard to using the township solicitor at township expense for
his legal representation as to an investigation by the State Ethics
Commission.
Facts: As a Solicitor for townships of the second class, you seek
an advisory opinion on behalf of a Township Supervisor who you
indicate is the subject of an investigation by the State Ethics
Commission. You state that the Supervisor is alleged to have
improperly accepted money or other items from contractors, thereby
violating the provisions against conflict of interest. The
Supervisor has asked you, as Township Solicitor, to provide him
with advice and legal representation should the investigation
continue. The Supervisor is seeking your services not as an
individual attorney, but rather as Township Solicitor. The
Supervisor has specifically requested that you bill your services
to the Township.
You feel that the request raises several concerns. You do not
wish to see this Supervisor worsen his position via the improper
expenditure of Township funds — i.e., his instruction to you, as
Township Solicitor, to undertake work on this particular project.
Also, you are concerned about the practical difficulty of
Stewart, Arthur J., Esquire, 94 -632
December 2, 1994
Page 2
potentially being called as a witness in this matter. You state
that it would clearly be difficult to serve in the dual roles of
advocate and witness.
Based upon all of the above, you request an advisory from the
State Ethics Commission.
Discussion: Before addressing your inquiry, two points must
initially be noted.
It is initially noted that pursuant to Sections 7(10) and
7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are
issued to the requestor based upon the facts which the requestor
has submitted. In issuing the advisory based upon the facts which
the requestor has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to
facts which have not been submitted. It is the burden of the
requestor to truthfully disclose all of the material facts relevant
to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords
a defense to the extent the requestor has truthfully disclosed all
of the material facts.
Secondly, it is initially noted that to the extent you have
raised a concern about the difficulty of your serving as legal
counsel to the Township Supervisor when you may be called as a
witness to testify, such a dilemma would be governed by the Rules
of Professional Conduct (which are enforced by the Disciplinary
Board of the Supreme Court), rather than by the Ethics Law.
Having set forth the above, your request shall now be
addressed.
A township supervisor is a public official as that, term is
defined under the Ethics Law, and hence a township supervisor is
subject to the provisions of that law.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined in the Ethics Law as follows:
Section 2. Definitions.
"Conflict or conflict of interest." Use
by a public official or public employee of the
Stewart, Arthur J., Esquire, 94 -632
December 2, 1994
Page 3
authority of his office or employment or any
confidential information received through his
holding public office or employment for the
private pecuniary benefit of himself, a member
of his immediate family or a business with
which he or a member of his immediate family
is associated. "Conflict" or "conflict of
interest" does not include an action having a
de minimis economic impact or which affects to
the same degree a class consisting of the
general public or a subclass consisting of an
industry, occupation or other group which
includes the public official or public
employee, a member of his immediate family or
a business with which he or a member of his
immediate family is associated.
"Authority of office or employment." The
actual power provided by law, the exercise of
which is necessary to the performance of
duties and responsibilities unique to a
particular public office or position of public
employment.
In addition, Sections 3(b) and 3(c) of the Ethics Law provide
in part that no person shall offer to a public official /employee
anything of monetary value and no public official /employee shall
solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgement of the
public official /employee would be influenced thereby. Reference is
made to these provisions of the law not to imply that there has
been or will be any transgression thereof but merely to provide a
complete response to the question presented.
Section 3(j) of the Ethics Law provides as follows:
Section 3. Restricted activities
(j) Where voting conflicts are not
otherwise addressed by the Constitution of
Pennsylvania or by any law, rule, regulation,
order or ordinance, the following procedure
shall be employed. Any public official or
public employee who in the discharge of his
official duties would be required to vote on a
matter that would result in a conflict of
interest shall abstain from voting and, prior
to the vote being taken, publicly announce and
disclose the nature of his interest, as a
public record in a written memorandum filed
Stewart, Arthur J., Esquire, 94 -632
December 2, 1994
Page 4
with the person responsible for recording the
minutes of the meeting at which the vote is
taken, provided that whenever a governing body
would be unable to take any action on a matter
before it because the number of members of the
body required to abstain from voting under the
provisions of this section makes the majority
or other legally required vote of approval
unattainable, then such members shall be
permitted to vote if disclosures are made as
otherwise provided herein. In the case of a
three - member governing body of a political
subdivision, where one member has abstained
from voting as a result of a conflict of
interest, and the remaining two members of the
governing body have cast opposing votes, the
member who has abstained shall be permitted to
vote to break the tie vote if disclosure is
made as otherwise provided herein.
If a conflict exists, Section 3(j) requires the public
official /employee to abstain and to publicly disclose the
abstention and reasons for same, both orally and by filing a
written memorandum to that effect with the person recording the
minutes or supervisor.
In the event that the required abstention results in the
inability of the governmental body to take action because a
majority is unattainable due to the abstention(s) from conflict
under the Ethics Law, then in that event participation is
permissible provided the disclosure requirements noted above are
followed. See, Mlakar, Advice 91- 523 -S.
In applying the above provisions of the Ethics Law to the
circumstances which you have submitted, pursuant to Section 3(a) of
the Ethics Law, a public official /public employee is prohibited
from using the authority of public office /employment or
confidential information received by holding such a public position
for the private pecuniary benefit of the public official /public
employee himself, any member of his immediate family, or a business
with which he or a member of his immediate family is associated.
The issue of whether a public official may use the authority
of his public position to secure or accept legal representation at
the expense of the governmental body is a very complex issue which
Stewart, Arthur J., Esquire, 94 -632
December 2, 1994
Page 5
hinges upon the nature of his conduct which is in question. The
dilemma is that until the facts are established in a case, it
cannot be conclusively determined whether publicly paid legal
representation is permissible. Meanwhile, if the public official
secures — or even accepts — publicly paid legal representation
to which he is not entitled, he risks being found in violation of
Section 3(a) of the Ethics Law.
There appears to be only one case addressing the issue of
publicly provided legal representation for a public official's
defense in a matter before the State Ethics Commission. A 1989
Westmoreland County Decision, In Re: Appeal from the 1987 Auditor's
Report of North Huntington Township, No. 11 Civil 1988, Opinion and
Order of June 1, 1989 (Westmoreland County), held that a Township
Commissioner could not and should not have been represented before
the State Ethics Commission at the Township's expense. The base
allegations were that the Township Commissioner had received excess
reimbursement from the Township for conferences /conventions, which
the Court stated might constitute official misconduct and would
certainly constitute conduct personal in nature. The Court stated
that whether a public official is entitled to publicly funded
representation does not hinge upon whether he has been successful
on the merits in his defense. Rather, it hinges upon whether the
charges concern performance of official duties or concern conduct
personal in nature. Id. at 8 -9.
The following appellate decisions are also pertinent to the
issue which you have raised.
In Roofner's Appeal, 81 Pa. Super 482 (1923), the Superior
Court stated that a township supervisor is not entitled to township
paid legal representation for his actions which are of a private
rather than public nature. In that case, township supervisors had
used township funds for legal representation when they were charged
with unlawfully neglecting and refusing to keep a particular
township road safe for travel.
In Stork v. Sommers, 158 Pa. Commw. Ct. 65, 630 A.2d 984
(1993), the Commonwealth Court held that a city treasurer was
entitled to a public defense when he acted in his official capacity
1 The few State Ethics Commission precedents on the issue of
publicly paid legal representation for public officials determined
that it is a violation of the Ethics Law for a township supervisor
to use township paid legal representation to challenge the wages
set for him as a township employee. See, Borland, Order No. 785;
Sanders, Order No. 786; Hessinger, Order No. 931 (appeal pending
before Commonwealth Court, No. 1732 C.D. 1994); Wasiela, Order No.
932 (appeal pending before Commonwealth Court, No. 1733 C.D. 1994) .
Stewart, Arthur J., Esquire, 94 =632
December 2, 1994
Page 6
to refuse to sign certain checks related to a fund which the
treasurer believed had been subject to fraudulent abuses by the
city mayor.
Silver v. Downs, 493 Pa. 50, 425 A.2d 359 (1981) involved the
defense of two township supervisors in a recall action which
involved official acts as to the handling of township accounts and
spending and which did not involve accusations of personal
wrongdoing. The Supreme Court noted that township supervisors are
statutorily entitled to publicly provided legal counsel to defend
their official actions under such circumstances. Id., 493 Pa. at
, 425 A.2d at 363 (citing 53 P.S. § 65582).
In In Re: Birmingham Township, Delaware County, 142 Pa. Commw.
317, 597 A.2d 253 (1991), the Commonwealth Court applied Silver v.
Downs, supra, and held that a supervisor is entitled to a public
defense in a recall action where there is no substantial supporting
evidence for allegations of criminal conduct, but is not entitled
to a public defense where it is determined that the official did
commit criminal conduct which results in removal from office. The
Commonwealth Court stated:
The Supreme Court in Silver v. Downs established the
rule that in a recall action, those officials facing a
possible recall ordinarily have the right to a defense
paid out of township funds. The Supreme Court implicitly
stated however, that when the conduct alleged was of a
criminal nature, the defense should not be available.
The two main concerns addressed by the Supreme Court were
that township officials should not be forced out of
office in order to avoid the substantial legal costs of
defending their official actions but also that the local
government should not pay for the defense of an official
who committed an act of criminal misconduct while in
office. See Silver v. Downs, 493 Pa. at 55 -57, 425 A.2d
at 362 -364.
Addressing these concerns, we believe the Supreme
Court in Silver v. Downs envisioned a procedure where if
the local government votes to provide a defense in a
recall action, that decision can be challenged by the
electors at a hearing held to determine if substantial
evidence exists that the official in question committed
an act of criminal misconduct, fraud, embezzlement or
other criminal conduct found in Silver v. Downs to be of
the type which could not be taken in any official
capacity. If substantial evidence is found to exist to
support the allegation of criminal conduct, the public
official should be denied a public defense.
Stewart, Arthur J., Esquire, 94 -632
December 2, 1994
Page 7
In Re: Birmingham Township, supra, 142 Pa. Commw. at , 597 A.2d
at 257 (Note omitted). The Court further noted:
. . . to insure that a public official receives legal
representation in defending his or her official actions,
we believe that if the official is denied a public
defense and it is later judicially determined that
substantial evidence did not in fact exist to support the
allegation, the official is entitled to reimbursement
from the local government for attorney fees and costs
expended in defending that allegation. Conversely, to
foreclose the possibility that the local government would
have to pay for the defense of a public official's
criminal conduct, we believe that if the official is
provided with a public defense and it is later judicially
determined that the official did in fact commit the
criminal conduct resulting in his or her removal from
office, the local government is entitled to recover the
attorney fees and costs of defending that particular
allegation.
Id., 142 Pa. Commw. at , 597 A.2d at 258 (Note omitted).
Having set forth all of the above precedents, some conclusions
can be reached. A public official who is found to have engaged in
criminal conduct is not entitled to a public defense. Otherwise,
a public official is entitled to publicly paid legal representation
as to official conduct but not as to conduct which is personal in
nature.
As noted above, it would be difficult if not impossible to
predict in advance whether a public official under investigation by
the State Ethics Commission would ultimately be entitled to have
his legal representation paid by his governmental body. Meanwhile,
any use of office or the authority of office by the public official
to secure or accept publicly paid legal representation to which he
was not entitled would violate Section 3(a) of the Ethics Law.
Under the circumstances, the better course of action for a Township
Supervisor in such a position would be to refrain from securing for
himself — or even accepting — township paid representation
pending the final outcome of the case. If based upon the outcome
of the case, the Supervisor would be entitled to a public defense,
pursuant to the Commonwealth Court ruling in In Re: Birmingham
Township, supra, the Supervisor could seek to recover the attorney
fees and costs expended without risk of transgressing Section 3(a)
of the Ethics Law.
The propriety of the proposed conduct has only been addressed
under the Ethics Law; the applicability of any other statute, code,
ordinance, regulation or other code of conduct other than the
Stewart, Arthur J., Esquire, 9 -632
December 2, 1994
Page 8
such.
Ethics Law has not been considered in that they do not involve an
interpretation of the Ethics Law. Specifically not addressed
herein is the applicability of the Second Class Township Code.
Conclusion: A township supervisor is a public official subject to
the provisions of the Ethics Law. The question of whether a
township supervisor is entitled to legal representation at township
expense in defending himself before the. State Ethics Commission as
to alleged violations of the Ethics Law hinges upon whether the
conduct in question was official conduct or conduct of a personal
nature, and whether the conduct was criminal. It is recommended
that a township supervisor refrain from securing — or even
accepting — township paid legal representation pending the final
outcome of a matter before the State Ethics Commission, to enable
a conclusive determination of the propriety or impropriety of such
township paid legal representation in the particular case. Lastly,
the propriety of the proposed conduct has only been addressed under
the Ethics Law.
Pursuant to Section 7(11), 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.
This letter is a public record and will be made available as
Finally, if you disagree with this Advice or if you have
any reason to challenge same, you may appeal the Advice to the
full Commission. A personal appearance before the Commission
will be scheduled and a formal Opinion will be issued by the
Commission.
Any such appeal must be in writing and must be actually
received at the Commission within fifteen (15) days of the date
of this Advice pursuant to 51 Pa. Code 513.2(h). The appeal may
be received at the Commission by hand delivery, United States
mail, delivery service, or by FAX transmission (717- 787 - 0806).
Failure to file such an appeal at the Commission within fifteen
(15) days may result in the dismissal of the appeal.
i
incerely,
in
cent . D•pko
Chief Counsel