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HomeMy WebLinkAbout95-629 EberleMary C. Eberle, Esquire Grim, Biehn, Thatcher & Helf 6th & Chestnut Streets PO Box 215 Perkasie, PA 18944 -0215 Dear Ms. Eberle: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 20, 1995 95 -629 Re: Conflict, Public Official /Employee, Second Class Township, Supervisor, Chairman, Challenge, Reimbursement of legal fees. This responds to your letters of November 2, 1995 and November 14, 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 member of the Board of Supervisors regarding reimbursement for legal fees incurred as a result of his membership on the Board of Supervisors. Fact-: As Solicitor for Springfield Township, Bucks County, you have been authorized by the Board of Supervisors of Springfield Township and Supervisor James Hopkins to request this advice. On February 2, 1995, Supervisor Kevin Kovacs filed a lawsuit against Supervisor James Hopkins in Quo Warranto. Mr. Kovacs challenged Mr. Hopkins' right to serve a second term as Chairman of the Board of Supervisors when a resolution had been made by the Board several years earlier advocating rotation of the Chair. Supervisor Hopkins filed Preliminary Objections to that Complaint. Those Preliminary Objections were sustained and no appeal was filed. In September 1995, Mr. Hopkins sought an opinion from your firm as to whether he could receive reimbursement from the Township for legal fees which he incurred in defending his nominating petition. John Rice of your firm issued an opinion, based on the Eberle /Hopkins, 95 -629 December 20, 1995 Page 2 case of Silver v. Downs, 425 A.2d 359, that Mr. Hopkins had a right to reimbursement because his legal fees were incurred as a direct result of his membership on the Board. A copy of that Opinion was enclosed with your letter and is incorporated herein by reference. Following the issuance of Mr. Rice's Opinion, a member of the Board of Supervisors made a motion to pay Mr. Hopkins' legal fees. The motion was seconded and Mr. Hopkins voted in favor of the motion. Two members of the 5 member Board would not vote in favor of the motion and have challenged Mr. Hopkins' right to vote on the question. The Board agreed to abide by the decision of this Commission and no money has been distributed. On the issue of conflict, Hopkins asserts that he is not receiving a pecuniary benefit but only reimbursement for out -of- pocket expenses incurred as a result of his membership on the Board of Supervisors. Hopkins states that if he does not vote, he will then have to file suit to seek reimbursement from the Township which will generate additional costs. The Supervisors who are opposed to Hopkins' viewpoint assert that the receipt of money is a pecuniary benefit so that Hopkins cannot vote on the issue. Your specific question is whether reimbursement for legal fees and interest on the unpaid balance constitute a private pecuniary benefit under the Act. 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 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. As a member of the Board of Supervisors for Springfield Township, James Hopkins (Hopkins) 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. Eberle /Hopkins, 95 -629 December 20, 1995 Page 3 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 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. (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 Eberle /Hopkins, 95 -629 December 20, 1995 Page 4 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 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. On the issue of paid legal representation for certain actions by a municipal official, there is some judicial precedent. See, Roofner's Appeal, 81 Pa.Super. 482 (1923); Stork v. Sommers, 158 Pa. Commw. Ct. 65, 630 A.2d 984; Silver v. Downs, 493 Pa. 50, 425 A.2d 359 (1981); In Re: Birmingham Township, Delaware County, 142 Pa.Commw. 317, 597 A.2d 253 (1991). There is also Commission precedent on this issue. Szymanowski, Opinion 87 -002; Borland, Order 592 -R; Wasiela, Order 932. 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 Eberle /Hopkins, 95 -629 December 20, 1995 Page 5 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 of this case, the defense by Hopkins as to a challenge to his position as Board Chairman related to action as to his official position and did not involve malfeasance, criminal wrongdoing or matters of a personal nature. Accordingly, Hopkins would not have a conflict and may vote on such reimbursement which would be a pecuniary benefit but not a private pecuniary benefit for the reason noted above. As to the questions of interest on the unpaid balance of the bill, the Ethics Law would not preclude the inclusion of such interest. However, issues involving the amount of interest or the propriety of charging interest are not addressed in that such matters are either factual or beyond the scope 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 member of the Board of Supervisors for Springfield Township, James Hopkins is a public official subject to the provisions of the Ethics Law. Section 3(a) of Act 9 of 1989 would not prohibit Hopkins from voting on the issue of the reimbursement of legal fees as to his defense to a challenge to his Chairmanship of the Board which related to his official actions as a Board Supervisor. 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. 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. Eberle /Hopkins, 95 -629 December 20, 1995 Page 6 Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa.Code §13.2(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 thirty (30) days may result in the dismissal of the appeal. erely, Vincent . Dopko Chief Counsel