HomeMy WebLinkAbout98-522 ArmstrongSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 6, 1998
Edmund F. Armstrong, Chairman
Lower Bucks County Joint Municipal Authority
7811 New Falls Rd.
P.O. Box 460
Levittown, PA 19058 -0460
98 -522
Re: Conflict, Public Official /Employee, Municipal Authority, Member, Borough,
Appointing Body, Removal, Quo Warranto, Defense, Solicitor, Costs.
Dear Mr. Armstrong:
This responds to your letter of February 3, 1998, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employe Ethics Law presents any
prohibition or restrictions upon a municipal authority board member from using the
authority solicitor to defend the board member in a quo warranto action filed by the
borough, as the appointing body, to remove the board member from office.
Facts: In January 1997, you were appointed by the Tullytown Borough Council
to a five -year term as a Board Director of the Lower Bucks County Joint Municipal
Authority (Authority), an Authority formed and existing pursuant to the Municipal
Authorities Act of 1945, as amended. Approximately one year later, on January 29,
1998, Tullytown Borough's new Council appointed another individual to your term of
office as a Board Director for the Authority.
The Tullytown Borough Council then took action to allow their solicitor to file a
quo warranto action with the Bucks County Court of Common Pleas to effect your
removal from the Authority Board. You believe that the current Council's action is a
question of the validity of your appointment by the previous Council. You ask if you
may, as a Board member, allow the Authority's solicitor to defend such attempt at your
removal from office. You have not undertaken such representation at this time.
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.
Armstrong, 98 -522
March 6, 1998
Page 2
As Board Member for Lower Bucks County Joint Municipal Authority (Authority),
you are a public official as that term is defined in the Public Official and Employe Ethics
Law ( "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:
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.
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
Armstrong, 98 -522
March 6, 1998
Page 3
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.
In each instance of a conflict, 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.
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 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. If the public official
secures — or even accepts — publicly paid legal representation to which he is not
entitled, he may be found in violation of Section 3(a) of the Ethics Law.
Publicly -paid legal representation is clearly a pecuniary benefit: if the governmental
body pays for the legal representation, the public official need not pay for it from his
own assets.
Various court cases have addressed the issue of whether and when a public
official is entitled to legal representation at taxpayer expense.
In Roofner's Appeal, 81 Pa.Super. 482 (1923), the Pennsylvania 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. The Court determined
that it was inappropriate for township supervisors to receive legal representation at
township expense concerning their indictment on a charge of unlawfully neglecting and
refusing to keep up a certain township road which had become unsafe and dangerous
for travel. Noting that the supervisors were charged with official misconduct or neglect
and refusal to perform their legal duties, the Court held that they were not entitled to
representation at township expense:
... [T]he power of a municipality or its appropriate officers to employ an
attorney is limited to those matters in which the municipality has some
official duty or which may probably be said to affect its interests. An
Armstrong, 98 -522
March 6, 1998
Page 4
attempted employment of an attorney in a matter in connection with which
the municipality has no official duty, or which does not fall within the
duties of the board or official making the contract of employment, does not
render the municipality liable to the attorney for his compensation: Dillon
on Municipal Corporations, Vol. 2, paragraph 824, at page 1246. It is a
fundamental principle that public funds shall not be used for private
purposes. The offense for which appellants were indicted was a personal
one: Com. v. John Meany, 8 Pa. Superior Ct. 224. Their obligation to pay
their counsel was personal.... Counsel fees and other expenses incurred
by public officials in defending criminal charges, or charges of official
misconduct, are incurred for a private purpose and cannot, in the absence
of statutory provision therefor be paid from public funds.... When one
accepts a public office he assumes the risk of defending himself even
against unfounded accusations at his own expense.
81 Pa.Super. at 484 -485.
In Silver v. Downs, 493 Pa. 50, 425 A.2d 359 (1981), the Pennsylvania Supreme
Court allowed representation by a solicitor in a recall action against two members of the
boards of supervisors. However, that case related to the official activities of township
supervisors in handling township accounts, as to which allegations there was a statutory
right to publicly provided legal counsel. Furthermore, the case did not involve
accusations of personal wrongdoing.
Matter of Auditor's Report of McKean Township for 1984, 531 A.2d 879
(Pa.Commw. Ct. 1987) involved a court's award of counsel fees in a surcharge action
where the supervisors had been ordered by the Court to retain private counsel for their
defense. The power of a court to award counsel fees is not at issue in this case nor is
that power questioned by the SEC.
In In Re Birmingham Township. Delaware County, 597 A.2d 253 (Pa. Commw.
Ct. 1991) Commonwealth Court 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 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
Armstrong, 98 -522
March 6, 1998
Page 5
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.
In Re: Birmingham Township, supra, 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.
Ij , 597 A.2d at 258 (Note omitted).
In Stork v. Summers, 630 A.2d 984 (Pa. Commw. Ct. 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.
Recently, In R.H. v. State Ethics Commission, 673 A.2d 1004 (Pa. Commw. Ct.
1996), Commonwealth Court affirmed this Commission's decision that certain Township
Supervisors violated Section 3(a) of Act 170 of 1978 when they used the Township
Solicitor, at taxpayer expense, to represent them In a suit which they brought to
challenge the auditor's decision to decrease their annual labor wage for their working
positions. Although the Petitioners argued that their appeal was not private In nature
but was within their duties as Township Supervisors, the Court did not agree. The Court
stated:
Section 516 of the Code, 53 P.S. §65516, which provides that
supervisors' duties include hiring such persons as may be necessary for the
general conduct of the business of the township, allows supervisors to
retain the township solicitor to represent the township. 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 received from the
Township Solicitor was financial gain other than compensation provide by
law, In violation of the 1978 Act.
Icy, 673 A.2d at 1011 (Emphasis added).
Finally, In In Re: Appeal from the 1987 Auditor's Report of North Huntingdon
Township, No. 11 Civil 1988 (Westmoreland Cty. C.P. June 1, 1989), the Common
Pleas Court held that a township commissioner was not entitled to publicly funded legal
representation In defending himself before the State Ethics Commission as to allegations
that he had received excess reimbursement from the Township for expenses incurred In
attending conferences and conventions. The Court stated, inter alia:
Armstrong, 98 -522
March 6, 1,998
Page 6
However, In this situation, it would appear that the alleged receipt of
excess reimbursement might be classified as conduct rising to the level of
official misconduct. Certainly, the receipt by Hagan of money to which he
was not entitled constitutes conduct personal In nature. Therefore, Hagan
could not and should not have been represented by the Township solicitor
or private counsel at Township expense.
. . . Nothing contained In the allegations, findings or final order of the
Commission can be construed to come under the umbrella of official
duties. Hagan received money he was not entitled to. Such conduct is
clearly personal In nature.
The Township has also argued that Hagan is entitled to payment of
his legal expenses because he was successful In his defense of the charges
made against him In the Commission proceedings. The basis for this
argument is a Township ordinance that provides for reimbursement of legal
expenses to a commissioner who is successful on the merits In his defense
of charges made against him. This argument-is based on the fact that the
order of March, 1987, concerned more serious allegations and findings
against Hagan than the final order of June, 1988.... While it is true that
the outcome In June, 1988, was Tess serious to Hagan than it appeared it
would have been In March, 1987, the Court would nevertheless be
hardpressed to conclude that Hagan was successful on the merits In his
defense. The Commission found wrongdoing, and Hagan repaid the money
previously retained by him to which he was not entitled. Such a
disposition does not constitute a successful defense on the merits.
Furthermore, the courts have held that whether or not a public official is
entitled to publicly funded representation does not turn on whether he has
been successful on the merits In his defense. Rather, it turns on whether
the charges concern performance of official duties or concern conduct
personal In nature. Therefore, under the conclusions reached earlier In this
Opinion, the Township's argument on this basis must fail.
Imo,, at 6 -9. The Court directed the Auditor to correct his report, surcharging
Commissioner Hagan for the expenditures that had been made for his legal defense
before the State Ethics Commission.
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 asito 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 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 the public official In such a position would be to refrain from
securing for himself — or even accepting — municipal paid representation pending the
final outcome of the case. If based upon the outcome of the case, the public official
would be entitled to a public defense, pursuant to the Commonwealth Court ruling In In
Re: Birmingham Township, supra, the public official could seek to recover the attorney
fees and costs expended without risk of transgressing Section 3(a) of the Ethics Law.
Armstrong, 98 -522
March 6, 1998
Page 7
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 Board Member for Lower Bucks County Joint Municipal Authority
(Authority), you are a public official subject to the provisions of the Ethics Law. Under
Section 3(a) of the Ethics Law, you would be entitled to use the solicitor as a defense
In a quo warranto action instituted by the borough , as the appointing body, to remove
you from office provided the basis of the recall involved official conduct by you and not
any criminal conduct or actions which were of a personal nature.
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 formal 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.
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ief Counsel