HomeMy WebLinkAbout97-536 MillsBeth S. Mills, Esquire
Dodaro, Kennedy & Cambest
Southpointe Plaza I
Suite 440
400 Southpointe Boulevard
Canonsburg, PA 15317 -8539
Dear Ms. Mills:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 6, 1997
97 -536
Re: Conflict, Public Official /Employee, Township, Supervisor, Quo Warranto
Complaint, Legal Representation paid by Township.
This responds to your letters of January 17, 1997, February 27, 1997, and
March 5, 1997 by 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 having the
Township Solicitor represent him at Township expense in defending a quo warranto
action that is based upon his prior conviction under Section 9(e) of the Ethics Act, Act
170 of 1978 (a statutory felony) on four counts of swearing falsely under oath before
officers of the Pennsylvania State Ethics Commission.
Facts: As Solicitor for the Township of Forward, you seek an advisory on behalf
of Mr. James Large (Large), a Supervisor who took office in January, 1996. Large has
been served with a Quo Warranto Complaint filed by the Attorney General's Office.
You have submitted a copy of the Complaint in Quo Warranto and a memorandum
detailing the facts of this matter, both of which documents are incorporated herein by
reference.
The Complaint requests ouster under Article 2, §7 of the Pennsylvania
Constitution which provides:
§7. Ineligibility by criminal convictions
No person hereafter convicted of embezzlement of
public moneys, bribery, perjury or other infamous crime,
shall be eligible to the General Assembly, or capable of
holding any office of trust or profit in this Commonwealth.
Mills /Large, 97 -536
March 6, 1997
Page 2
On November 18, 1986, Large was convicted under Section 9(e) of the Ethics
Act, Act 170 of 1978 (a statutory felony) on four counts of swearing falsely under
oath before officers of the Pennsylvania State Ethics Commission. Large was
sentenced on February 3, 1987 to imprisonment of not Tess than one year nor more
than two years. Large did in fact serve one year in prison and was released on
probation. Subsequently, in November, 1995, Large was elected to the office of
Township Supervisor.
You state that the issue of Large's imprisonment and the charges against him
were widely known throughout the Township. In fact, several signs were placed
throughout the Township with the saying, "No Jail Bird."
You pose the following specific questions:
1. Whether your law firm may represent Large; and
2. Whether Large's defense costs are to be paid by the Township.
You state your opinion that as Solicitor you may represent Large in the Quo
Warranto action at Township expense.
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.
To the extent Large is a Supervisor for the Township of Forward, he is a public
official subject to the provisions of the Ethics 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
Mills /Larae, 97 -536
March 6, 1997
Page 3
"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.
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 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 applying the above provisions of the Ethics Law to your inquiry, the first
question which you have posed as to whether your law firm may represent Large does
not fall within the parameters of the Ethics Law and so may not be addressed herein.
It is suggested that you consult the Rules of Professional Conduct on that question.
Mills /Large, 97 -536
March 6, 1997
Page 4
Your second question, as to whether Large's defense costs are to be paid by the
Township, can and shall be addressed insofar as Large's conduct is in question. In
analyzing the question, there is no need to address the merits of the quo warranto
action, which of course can only be decided by a Court.
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 hinges upon the nature of the conduct which is in
question.
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.
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. 1. , 493 Pa. at , 425 A.2d at 363 (citing 53 P.S. §65582).
In In Re: Birmingham Townshio. Delaware Count, 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 jt entitled
to a public defense where it is determined that the official did commit criminal conduct
which results in removal from office.
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 to refuse to sign certain checks related to a fund which
the treasurer believed had been subject to fraudulent abuses by the city mayor.
In R.H. v. SEC, 677 A.2d 1004 (1996), Commonwealth Court affirmed this
Commission's determination 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. The Court stated:
However, we must agree with the SEC that the benefits Petitioners
sought through the suit against the Township Auditors were personal to
the Petitioners and not necessary for the general conduct of business of
the Township. Therefore, the value of the legal representation Petitioners
Mills /Large, 97 -536
March 6, 1997
Page 5
received from the Township Solicitor was financial gain other than
compensation provided by law, in violation of the 1978 Act.
Iii at (Emphasis added).
In reviewing the above precedents, at least one conclusion can be reached: a
public official is entitled to publicly paid legal representation as to official conduct that
is not criminal in nature, but he is not entitled to such representation in actions
involving conduct which is personal in nature.
Regardless of the outcome of the case on the merits of the quo warranto action,
it is clear that Large's conduct in seeking and accepting public office despite his
convictions was not official conduct, but rather was conduct that was personal in
nature. Such actions were not "official" because they occurred before Large was a
public official. Furthermore, issues as to Large's ineligibility to even hold public office
in light of his prior convictions are personal in nature and are not necessary for the
general conduct of business of the Township. Consequently, pursuant to Section 3(a)
of the Ethics Law, Large may not secure or accept Township paid legal representation
for his defense in the quo warranto action against him.
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 Second Class Township Code.
Conclusion: To the extent Mr. James Large (Large) is a Supervisor for the
Township of Forward, he is a public official subject to the provisions of the Ethics
Law. Pursuant to Section 3(a) of the Ethics Law, Large may not secure or accept
Township paid legal representation for his defense in the quo warranto action against
him because Large's conduct in seeking office despite his prior convictions under
Section 9(e) of the Ethics Law occurred before he took office and was not official
conduct, but rather was conduct of a personal nature and not necessary for the
general conduct of business of the Township. Lastly, the propriety of the proposed
conduct has only been addressed under the Ethics Law.
Pursuant to Section 7(111, 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 alt
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
formal Opinion will be issued by the Commission.
Mills /Large, 97 -536
March 6, 1997
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.
cerely,
v � -.,�h
Vincent J. opko
p ko
Chief Counsel