HomeMy WebLinkAbout95-531 KrisaJohn Krisa, Esquire
Krisa, McDonough & Cosgrove, P.C.
Route 6
Blakely, PA 18447
Dear Mr. Krisa:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 16, 1995
95 -531
Re: Conflict, Public Official /Employee, School Board Member,
Teacher, Furlough, Sunshine Law, Lawsuit, Legal
Representation, Attorney Fees, Reimbursement.
This responds to your letter of February 3, 1995, 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 school board member
in participating to reimburse himself for legal fees incurred in
defending an action brought by a furloughed teacher who claimed the
decision to furlough was not in conformity with the Sunshine Law.
Facts: Due to numerous inquires from the school superintendent and
individual board members who are directly affected by the following
factual situation, you as the Solicitor for the Lakeland School
District seek an advisory. However, you have only submitted a
letter dated February 10, 1995 to confirm that James Black, a
member of the Board of Directors of the Lakeland School District,
has authorized you to make the inquiry on his behalf.
In August of 1993, acting on the advice of the superintendent
of schools, Mr. Robert Ghigiarelli, the school board furloughed a
teacher. This decision was based upon decreased enrollment and the
return from sabbatical leave of two teachers in the same teacher
certification area. Subsequently, the furloughed teacher filed
charges against the members of the Board of Education, stating that
the decision to furlough was not discussed at a previous board
meeting, so as to be violative of the "Sunshine law ". As Solicitor
of the Lakeland School Board, you informed the board members that
the charges constituted a civil suit filed individually against
each board member so that you would not be able to defend them as
Krisa, John, Esquire, 95 -531
March 16, 1995
Page 2
the district solicitor. The board members obtained their own legal
counsel and paid all costs for their defense.
The case went to court and the judge ruled that there was no
foundation or merit to the case. Each of the board members were
found innocent of all charges. The superintendent of schools, Mr.
Ghigiarelli, testified that it was in fact discussed properly at
previous meetings and provided documentation in support of his
testimony. He also testified that all rules and laws were followed
in the teacher's dismissal.
After a board member contacted the Commission office and spoke
to a staff member to explain the details of the case, it was
suggested that you write to the Commission to obtain an opinion
before the Board makes a decision on voting for reimbursement. You
and several other board members have had conversations with
Attorney Stephen Russell, Solicitor for the Pennsylvania School
Board Association, who supports the affected board members claim
that they should in no way incur the cost of the defense when the
Board acted in the full scope of proper Board procedure and in
total respect for the law regarding the "Sunshine Act," 403J.
Attorney Russell expressed his opinion that the Board has the right
to vote for reimbursement.
The board members paid out a total of $4,800.00 in legal fees
for this hearing. They strongly feel that they should not have to
incur those expenses due to a frivolous lawsuit brought by someone
who has access to legal counsel at very limited cost.
The affected board members believe, through conversations with
the Board Solicitor and Attorney Russell of the Pennsylvania School
Board Association, that their expenses should be reimbursable based
upon the judge's decision in the case.
Since there were six (6) board members who were charged and
who would need to pass a resolution authorizing reimbursement for
legal fees and court costs, each would have to vote on a matter
that would arguably result in a pecuniary benefit to them. You
argue that the passage of the resolution would simply make the
individual board members "whole" without any net gain to any of
them.
You seek a written opinion from the Commission before
proceeding any further on this matter.
Discussion: 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
Krisa, John, Esquire, 95 -531
March 16, 1995
Page 3
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.
Furthermore, to the extent that you have only obtained the
authorization of James Black as to the request, you are advised
that this Advice is limited in scope to only the conduct of James
Black. You were given the opportunity by my letter of February 7,
1995 to obtain authorizatioris of all such board members but you
have supplied an authorization as to only James Black.
As a school board member for Lakeland School District, James
Black is a public official as that term is defined under the Ethics
Law, and hence he 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
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
Krisa, John, Esquire, 95 -531
March 16, 1995
Page 4
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
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
Krisa, John, Esquire, 95 -531
March 16, 1995
Page 5
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.
As to the specific question you pose, the Commission has held
that a public official may not use the municipal solicitor or an
attorney paid with municipal funds in cases where the action is
private in nature or involves malfeasance; contrariwise, where the
public official acts in an official capacity with no element of
wrongdoing, paid legal representation is not prohibited under the
Ethics Law. An example of a public official improperly obtaining
legal representation at municipal expense would be where a township
supervisor as a working township employee sues the auditors as to
the compensation the auditors set for him. Hessinger, Order 931.
Based upon the submitted facts in this case, Board Member
James Black appears to have acted in an official capacity in
defending a legal action arising out of a furlough decision by the
school board. Further, there does not appear to be any element of
a private matter as to either the furlough decision or the
following action relative to the Sunshine Law issue. Accordingly,
the Ethics Law would not prohibit James Black from participating in
a decision as to the reimbursement of legal fees or the receipt
thereof. The reimbursement of legal fees is not a making whole or
a non -gain; such is a pecuniary benefit. However, the pecuniary
benefit is not a private one for the reasons noted above and
therefore such pecuniary benefit is reimbursable under 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
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 respective municipal code.
Conclusion: As a school board member for Lakeland School District,
James Black is a public official subject to the provisions of the
Ethics Law. Section 3(a) of the Ethics Law does not prohibit a
school board member from participating to reimburse himself for
legal fees incurred in defending an action brought by a furloughed
teacher who claimed the decision to furlough was not in conformity
with the Sunshine Law. 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
Krisa, John, Esquire, 95- 53
March 16, 1995
Page 6
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.
such.
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.
S cerely
Vincent _
J �
Dopko
Chief Counsel