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HomeMy WebLinkAbout96-584 DjordjevicPredrag Djordjevic 41 1 Powell Avenue Clarks Summit, PA 1841 1 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 20, 1996 96 -584 Re: Conflict, Public Official /Employee, Borough Councilmember, Immediate Family, Wife, Lawsuit, Legal Fees, Attorneys Fees, Voting. Dear Mr. Djordjevic: This responds to your letter of July 29, 1996 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 Borough Councilmember as to the payment by the Borough of the legal fees of plaintiffs in a pending lawsuit against the Borough and the Councilmember's wife. Facts: As a Member of the Clarks Summit Borough Council, you request an advisory from the State Ethics Commission. Your wife, Kathy Roth, and the Borough of Clarks Summit are Defendants in a legal action docketed as 94 Equity 27. You state that on February 3, 1996, Judge O'Malley ruled against the Plaintiffs' request for attorneys fees. You have submitted what appears to be, and what is expressly assumed to be, a portion of the Judge's decision, consisting of pages numbered 16 -18. It is noted that the said decision grants Defendants' preliminary objection to Plaintiffs' request in the Complaint for attorneys fees. The decision discusses various case law as to the proper method for pursuing attorneys fees: by complaint or by motions or petitions at the close of proceedings. In granting the preliminary objection to the Complaint, the Court indicates that the Complaint contains no allegation of arbitrary or bad faith or vexatious conduct on the part of the Defendants, but further states that ". . . the better practice would seem to be the employment of a petition for attorney fees at the close of the case." (Incorporated excerpt at 18). Although you have not expressly so stated, it would appear that the lawsuit is still pending. The Plaintiffs have submitted to the Borough a request for reimbursement of all of their attorneys fees. You state that the request is addressed to the Borough only and that since the rendering of Judge O'Malley's decision (on Diordievic, 96 -584 August 20, 1996 Page 2 preliminary objections), the Plaintiffs have never made any request for your wife to pay their court costs. You further state that there is no judgment or action pending that would require your wife to be responsible for these costs. You note that Attorney Preate, who is the Solicitor of Clarks Summit Borough, has suggested that if Borough Council votes not to reimburse the Plaintiffs, the Borough may be sued and if the Judge awards the costs to the Plaintiffs, the Borough may sue your wife for reimbursement, such that your wife could be ordered by the Court to pay those costs. You characterize Attorney Preate's position as speculative. Citing Section 1 of the Ethics Law, wherein the purpose is stated, as well as the Section 2 definition of "conflict" or "conflict of interest" and Section 3(a), you note that the statutory language applies to financial gain or benefit. You conclude: "Since my vote would not cause me or my wife any financial gain or benefit, I believe I should have an opportunity to cast my vote." (Letter of July 29, 1996 at 2). Based upon all of the above, you ask whether it would be a conflict of interest for you to vote on the issue of the payment by the Borough of the Plaintiffs' legal fees. It is noted that the Commission has received correspondence from third parties who are involved in this matter. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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. Thus, this advisory is issued independently of third party submissions. Third parties do not have standing to participate in the advisory process, but may submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. As a Member of the Clarks Summit Borough Council, you are a public official as that term is defined under the Ethics Law, and hence you are 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: Djordievic, 96 -584 August 20, 1996 Page 3 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. "Immediate family." A parent, spouse, child, brother' or sister. 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 Piordievic, 96 -584 August 20, 1996 Page 4 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. By definition, the term "immediate family" includes a wife (spouse). Based upon the facts which you have submitted, you would have a conflict of interest as to the matter of the Borough's payment of Plaintiffs' legal fees for a pending lawsuit involving both the Borough and your wife as Defendants. Judge O'Malley's decision granted a preliminary objection as to the prayer for relief which appeared in the Complaint, but that may not be the final ruling on the issue. Indeed, both the case law cited by the Judge and the wording of the Judge's ruling on the issue indicate that the proper method for pursuing counsel fees may be through motions or petitions at the conclusion of the proceedings, and it appears from the facts which you have submitted that the proceedings are not yet concluded. Furthermore, the issue could very well be litigated on appeal. In each instance of a conflict of interest, you are required to abstain from any participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. 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 Borough Code. Conclusion: As a Member of the Clarks Summit Borough Council, you are a public official subject to the provisions of the Ethics Law. You would have a conflict Djordievic, 96 -584 August 20, 1996 Page 5 of interest in the matter of the Borough's payment of Plaintiffs' legal fees for the pending lawsuit involving both the Borough and your wife as Defendants. In each instance of a conflict of interest, you would be required to abstain from any participation of any nature whatsoever and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. 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 such. 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 forma/ Opinion will be issued by the Commission. 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. T cerely, kfssk Vincent J. 1 • pko Chief Counsel