HomeMy WebLinkAbout1054 HuhnIn Re: William Huhn
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Allan M. Kluger
Rev. Joseph G. Quinn
Julius Uehlein
96- 022 -C2
Order No. 1054
5/29/97
6/11/97
. This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission
conducted an investigation regarding a possible violation of the Public Official and
Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 gt, seq., by the above -
named Respondent. At the commencement of its investigation, the Investigative
Division served upon Respondent written notice of the specific allegation(s). Upon
completion of its investigation, the Investigative Division issued and served upon
Respondent a Findings Report identified as an "Investigative Complaint." An Answer
was filed and a hearing was held. The record is complete. A consent agreement was
submitted by the parties to the Commission for consideration which was subsequently
approved.
This adjudication of the State Ethics Commission will be made available as a
public document thirty days after the mailing date noted above. However,
reconsideration may be requested. Any reconsideration request must be received at
this Commission within thirty days of the mailing date and must include a detailed
explanation of the reasons as to why reconsideration should be granted in conformity
with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the finality
of this adjudication but will defer its public release pending action on the request by
the Commission.
The files in this case will remain confidential in accordance with Act 9 of 1989,
65 P.S. §408(h). Any person who violates confidentiality of the Ethics Law is guilty
of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not
more than one year, 65 P.S. §409(e). Confidentiality does not preclude discussing this
case with an attorney at law.
Hu 96- 022 -C2
Page 2
I. ALLEGATION:
That William Huhn, a public official /public employee in his capacity as a Member
of the Lower Bucks County Joint Municipal Authority, violated the State Ethics Act
(Act 9 of 1989) when he used the authority of his office for a private pecuniary benefit
by participating in board discussions and /or actions resulting in the Solicitor for the
Authority being retained at Authority expense to represent him in matters before the
State Ethics Commission.
II. FINDINGS:
1. William Huhn served as a member of the Board of the Lower Bucks County
Joint Municipal Authority (LBCJMA) from April 21, 1992 to January, 1996.
2. William Huhn was appointed to the LBCJMA on April 21, 1992, by Bristol
Township, Bucks County, Pennsylvania Council.
3. The LBCJMA is a body corporate and politic incorporated by the Borough of
Tullytown and the Township of Bristol on May 20, 1952, pursuant the
Municipal Authorities Act of 1945.
a. The LBCJMA is empowered to acquire, hold, construct, improve,
maintain, and operate, own, lease, either in the capacity of lessor or
lessee, sewers, sewer systems or parts thereof, sewage treatment
works, including works for treating and disposing of industrial waste,
wastewater, water supply and water distribution systems.
4. The Authority Board consists of six members, three appointed by Bristol
Township and three appointed by Tullytown Borough.
5. Article II, Section 1, of the LBCJMA By -Laws provides, in part, the following
regarding the composition of the Board.
a. The Board of the Authority shall consist of a board of six (6) members,
three (3) of whom shall be citizens of the Township of Bristol and three
(3) of whom shall be citizens of the Borough of Tullytown. Whenever a
vacancy in the Board has occurred, the Municipal Authorities of the
municipality which appointed the member whose term has or is about to
expire, or is terminated, shall appoint a member for a term of five (5)
years to fill a vacancy occurring by reason of the expiration of the term
and for the unexpired term when the vacancy has occurred otherwise.
Members whose terms have expired shall hold office until their
successors are appointed and may be appointed to succeed themselves.
6. The board members have the authority to control the overall operation of the
LBCJMA. They approve payment of Authority bills; appoint the professional
staff such as solicitors and engineers; and award contracts for Authority work.
7. On August 17, 1994, the Investigative Division of the State Ethics Commission
received signed, sworn complaints alleging that William Huhn, and other
members of the LBCJMA, public officials in their capacities as members of the
Lower Bucks County Joint Municipal Authority violated provisions of Section
403(a) of the State Ethics Act (Act 9 of 1989) when they used the authority
Huhn, 96- 022 -C2
Page 3
of their office for a private pecuniary benefit by participating in discussions,
actions and /or decisions which resulted in the receipt of additional funds and /or
compensation for service on the Authority Board when such was not provided
by law.
8. On August 29, 1994 the Investigative Division initiated preliminary inquiries
regarding the above allegation.
9. On November 4, 1994 a letter was forwarded to William Huhn informing him
that a complaint against him was received by the Investigative Division and a
full investigation was being commenced.
a. Five other LBCJMA members also received letters advising them that
their actions were being investigated.
10. Kevin Bradway, Esquire, served as solicitor for the LBCJMA from March 15,
1994, to March 25, 1996.
11. On October 30, 1995 the Investigative Division of the Ethics Commission
forwarded a Findings Report/Complaint to Huhn and the individual board
members being investigated.
12. Upon receipt of the Findings Report/Complaint Huhn, Pekarski, Czyzyk, Servis
and Gesauldi met with Solicitor Bradway and presented him with their copies
of the Findings Report/Complaint.
13. Bradway represented Huhn, Pekarski, Czyzyk, Servis and Gesauldi individually,
as their attorney, in all subsequent contacts with Ethics Commission's
Investigative Division.
14. On June 4, 1996, a hearing into the allegations was held at the State Office
Building, Philadelphia, PA with Board Members Huhn, Pekarski, Czyzyk, Servis
and Gesauldi in attendance.
a. Bradway represented the board members at the hearing.
15. Bradway entered into negotiations with representatives of the Ethics
Commission Investigative Division regarding a disposition of the cases against
Servis and the other board members.
a. The negotiations in part centered upon whether the board members
would be required to pay restitution to the Authority and, if so, how
much.
b. Huhn and the other board members approved a consent agreement.
c. The Agreement was approved by the Ethics Commission on August 29,
1996.
d. The agreement concluded that LBCJMA Board Members Huhn, Czyzyk,
Pekarski, Servis and Gesauldi, committed an unintentional technical
violation of Section 3(a) of the Ethics Act and directed that restitution be
made.
Huhn, 96- 022 -C2
Page 4
16. Each board member agreed to make restitution to the Authority in the amount
of $750.00.
17. Bradway submitted invoices to the LBCJMA for payment in part for the
following services provided after the issuance of the Investigative
Complaint /Findings Report relating to the Ethics Commission proceedings:
a. Date of Invoice: December 4. 1995
For Professional Services Rendered November 1, 1995 Through November 30,
1995
Date Description of Work Hours
11/2/95 Review investigative complaints 1.0
11/2/95 Review Board Member salary information .5
11/3/95 Meeting with Members Pekarski, Huhn draft of
response 2.0
11/3/95 Meeting with member Gesauldi/ Draft of Response 1.3
11/3/95 Phone conversation with Ethics Commission .3
11/6/95 Review documents /investigation /board salary .8
11/6/95 Revision of draft to complaints 1.4
11/6/95 Meeting with Board Member Re: Complaint .9
11/6/95 Draft responses to complaints 1.2
11/7/95 Meeting with Board Member Re: Answer 1.3
11/8/95 Revisions to answer to complaints .4
11/10/95 Review answers to complaints and
Ethics Complaints .9
11/10/95 Meeting with Board Member: Gesauldi 1.0
11/10/95 Meeting with Board Member: Huhn 1.0
11/13/95 Meeting with Board Member: Czyzyk 1.0
11/14/95 Meeting with Board Member: Pekarski .8
11/15/95 Legal research re: Ethics Law .9
11/15/95 Phone conversation with Ethics Commission .2
11/15/95 Correspondence to Ethics Commission .3
11/27/95 Phone conversation with Managing Director
• Re: Investigation .1
11/29/95 Review documents from Ethics Commission 3
11/29/95 Correspondence to Ethics Commission 2
Total Hours 17.8
X $125.00/hr
$2225.00
b. Date of Invoice: December 29. 1995
For Professional Services Rendered December 1, 1995 Through December 29,
1995
Date Description of Work Hours
12/1/95 Review documents Re: Ethics Commission .4
12/12/95 Phone conversations with Ethics Commission .3
12/19/95 Meeting with Chairman Re: Ethics Complaint .4
12/20/95 Phone conversation with Ethics Re: Complaints .5
12/26/95 Review documents Re: Ethics Complaint .4
Huhn, 96- 022 -C2
Page 5
12/26/95
12/26/95
12/27/95
12/27/95
12/29/95
12/29/95
Date
1/02/96
1/03/96
1/05/96
1/11/96
1/11/96
1/15/96
1/19/96
1/23/96
1/23/96
1/24/96
1/25/96
1/25/96
1/25/96
1/25/96
1/25/96
1/25/96
Meeting with Member Gesauldi Re: Ethics matter .7
Review of document Re: Ethic Matter .4
Meeting with Member Pekarski Re: Ethics Matter .8
Meeting with Chairman Re: Meeting /Ethics Matter 1.3
Review documents Re: Ethics Matter .4
Meeting with Member Czyzyk Re: Ethics Matter .8
Total Hours 6.4
X $125.00/hr
$800.00
TOTAL $3,050.00
18. Bradway also billed the LBCJMA for legal services regarding Huhn and the other
board members' Ethics Commission complaint, hearing and Consent Agreement
as follows:
a. Date of Invoice: Unknown
For Professional Services Rendered January 1, 1996 Through January 31, 1996
The copy of this invoice shows a handwritten note stating:
"2/16/96
Deb
Delete the 3 - ?
Gus
Revised bill being sent"
Description of Work
Review correspondence Re: Ethics Matter
Meeting with Member Huhn Re: Ethics Matter
Phone conversation with Ethics Commission
Phone conversation with Ethics Commission
Meeting with Members Huhn and Pekarski
Review correspondence from Ethics Commission
Review documents from Ethics Commission
Phone conversation with Ethics Commission Re:
Stipulation
Phone conversation with Member Czyzyk Re:
Ethics Commission
Preparation of Proposed settlement /stipulations
Re: Ethics Commission
Phone conversation with Member Servis Re:
Ethics Commission
Revisions to Proposed consents
Phone conversation with Former Member Huhn
Re: Ethics Commission
Phone conversation with Former Member Pekarski
Re: Ethics Commission
Meeting with Member Servis Re: Ethics
Commission
Meeting with Chairman Gesauldi
Re: Ethics Commission
Hours
.2
.8
.2
.3
1.0
. 2
.6
. 3
. 4
4.0
. 3
.9
.3
.3
1.1
.5
H 96- 022 -C2
Page 6
1/25/96
1/26/96
1/31/96
Phone conversation with former Member Pekarski
Re: Ethics Commission .3
Correspondence to Ethics Commission .4
Phone conversation with Ethics Commission .4
Total Hours 12.5
X $125.00/hr
$1562.50
19. The invoice outlined in Finding No. 18 was not approved for payment by the
Authority.
a. The invoice was resubmitted on February 1, 1996, and all of the billings
related to the State Ethics Commission were deleted.
20. Each month the LBCJMA board members are provided with a Cash
Requirements Report which contains the list of vendors or professional people
doing business with the Authority, the date of their bill, a description of the
work, and the total cost of the bill.
a. Board members then vote on these bills at the meeting.
21. Cash Requirements Reports for the months of November, December of 1995,
and January of 1996 contained the following information regarding invoices
submitted by Kevin Bradway.
a. Cash Requirements Report December, 1995
Vendor Invoice Invoice Payment Description
Number Date Amount Amount
972 11/30/95 5,396.00 5,396.00 Nov Legal Fee
Cordisco & Bradway
(Includes $2,225 related
to Ethics investigation.
This amount was not
itemized as work related
to the Ethics investigation
in the Case Requirements
Report.)
b. Cash Requirements Report January . 1996
Vendor Invoice invoice Payment Description
Number Date Amount Amount
972 12/29/95 3,082.00 3,082.00 Dec Legal Fee
Cordisco & Bradway
(Includes $800 related to
Ethics investigation. This
amount was not itemized
as work related to the
Ethics investigation in the
Cash Requirements
Report.)
Huhn, 96- 022 -C2
Page 7
22. Payments to Kevin Bradway were approved by the LBCJMA, including Huhn,
for representation of board members before the State Ethics Commission after
the issuance of the Investigative Complaint /Findings Report:
a. December 19. 1995
Approval of Accounts Payable
A motion was made by Mr. Pekarski, seconded by Mr. Huhn, to accept
and approve the payment of the December 1995 accounts payable as
presented, with the exception noted above. Motion passed unanimously.
Servis was present and voted. (Included Bradway invoice as outlined
in Finding No. 17(b)).
b. January 22, 1996
A motion was made by Mr. Czyzyk, seconded by Mr. Servis, to approve
payment of the January 1996 accounts payable as presented. Motion
carried. Mr. Verduci voted aye on all invoices, with an abstention on
Invoice /Vendor No. 00039 (A.V. Construction) listed on Page One. Mr.
Armstrong vote aye on all invoices, with the exception of Mr. Lefcourt's
invoice. (Bradway invoice as outlined in Finding No. 17(c) approved).
Huhn not present.
23. On or before November 14, 1995, LBCJMA Member Edmund Armstrong
contacted the State Ethics Commission and obtained information on the
propriety of public official using government funds to pay for their personal legal
representation.
a. Mr. Armstrong was provided with prior State Ethics Commission
decisions indicating that such was not appropriate under the Ethics Law.
24. On November 21, 1995, during an executive session of the LBCJMA, Board
Member Armstrong raised the issue of board members using the authority
solicitor to represent them before the State Ethics Commission.
a. Armstrong advised the other members of the information he received
from the State Ethics Commission on this issue.
25. On November 21, 1995, after the executive session, Board Member Armstrong
made the following statement:
Mr. Armstrong went on record opposing any use of our
Solicitor to defend us as individual Board Members or Board
Members as a whole against any alleged improprieties
against us as Board Members. If there is an action against
the Authority as a whole and not against the members,
certainly that would be precluded, but as far as representing
us against any other improprieties, I just want to be on
record as being in opposition.
a. Mr. Armstrong did not make reference to the State Ethics Commission
investigations so as to not violate the confidentiality provisions.
Huhn, 96- 022 -C2
Page 8
26. Payments were made to the law firm of Cordisco and Bradway as follows by
the LBCJMA:
Check No. Date Amount Signatures
7874 12/20/95 $5,396.00 William Huhn & John Servis
8037 01/24/96 $3,082.00 John Servis & Edward Czyzyk
a. On or about December 24, 1996, the law firm of Cordisco & Bradway
reimbursed the LBCJMA $2,525.00 relating to the payments received
from the authority for the noted representation of authority members.
b. On 3/31/97 the remaining funds of $562.50 was reimbursed by the law
firm of Cordisco & Bradway to the LBCJMA relating to the payments
received from the authority for the noted representation of authority
members.
c. All monies in question have been reimbursed to the Authority.
27. William Huhn realized a private pecuniary gain when Kevin Bradway, Esquire,
inadvertently billed the Authority for legal services in connection with the
investigation.
a. Huhn and four other board members individually used Bradway's services
with regard to the Ethics investigation.
b. Huhn participated in board actions to pay Bradway invoices in November
and December 1995.
28. Respondents understood with the filing of an investigative complaint the
Solicitor would not bill the Authority for any legal services rendered in
connection with this matter.
29. Respondents agreed to utilize the legal services of Mr. Bradway and were billed
individually for legal services rendered.
30. Due to an oversight by Mr. Bradway's office, certain legal services relating to
the representation in the ethics matter appeared on billings to the Authority.
a. In addition to billing the respondents individually, the solicitor mistakenly
billed the Authority for legal services.
31. Specifically legal billings for November 1995 and December 1995 inadvertently
included items relating to ethics matters.
32. Respondents did not specifically review the Billings in question prior to voting
on said billings at the regular monthly meetings.
33. At the time, Authority procedure was for the full -time Managing Director to
review and compile all monthly billings.
34. The Finance Committee of the Board would meet with the Managing Director
prior to the full board meeting.
Huhn, 96- 022 -C2
Page 9
35. At the Finance Committee meeting the Managing Director would provide a list
of the monthly billings to the Committee.
36. The Finance Committee did not review each bill and relied on the Managing
Director to raise any relevant issues on the billings.
37. The respondents never individually or collectively reviewed the specific bills in
question.
38. The Managing Director never notified any of the respondents of any potential
conflict with the legal billings in question.
III. DISCUSSION:
At all times relevant to this matter, William Huhn, hereinafter Huhn, has been
a public official subject to the provisions of the Public Official and Employee Ethics
Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, ?t g.
The issue before us is whether Huhn violated Section 3(a) of the Ethics Law as
to the allegation that he used the authority of his office for a private pecuniary benefit
by participating in board discussions or actions resulting in the solicitor for the
authority being retained at authority expense to represent him in matters before the
State Ethics Commission.
Pursuant to Section 3(a) of the Ethics Law quoted above, a public official /public
employee is prohibited from engaging in conduct that constitutes a conflict of interest.
The term "conflict of interest" is defined under Act 9 of 1989 as set forth above.
Having noted the issues and applicable law, we shall now summarize the
material facts.
Huhn served as a Member of the Board of the Lower Bucks County Joint
Municipal Authority (LBCJMA) from April 21, 1992 to January, 1996. The six -
Member Board has the authority to control the overall operation of the Authority. The
Board approves payment of Authority bills, awards contracts for Authority work, and
appoints the professional staff including the Solicitor. Kevin Bradway, Esquire
(Bradway), served as Solicitor for the LBCJMA from March 15, 1994 to March 25,
1996.
On October 30, 1995, the Investigative Division of this Commission forwarded
a Findings Report/Complaint to Huhn and the individual Board Members who were
being investigated. Upon receipt of the Findings Reports /Complaints, Board Members
Huhn, Pekarski, Czyzyk, Servis, and Gesauldi met with Solicitor Bradway and provided
him with their copies of the Findings Report/Complaint. Bradway represented Huhn,
Pekarski, Czyzyk, Servis, and Gesauldi as their attorney, in all subsequent contacts
with the Investigative Division.
The hearing as to the allegations was held on June 4, 1996, with all five Board
Members and Bradway in attendance. Bradway represented the five Board Members
at the hearing. Bradway entered into negotiations with representatives of the
Investigative Division, and the parties reached a Consent Agreement which was
approved by this Commission on August 29, 1996. The Commission found that
LBCJMA Board Members Huhn, Czyzyk, Pekarski, Servis, and Gesauldi had each
Huhn, 96- 022 -C2
Page 10
committed an unintentional technical violation of Section 3(a) of the Ethics Law and
directed that restitution be made in the amount of $750 per Board Member. We take
administrative notice of the fact that our prior decision as to Huhn is Huhn, Order No.
1011
Bradway submitted invoices to the LBCJMA for the legal services which
included representation as to the State Ethics Commission investigation from the point
in time after the issuance of the Investigative Complaint. The first invoice, dated
December 4, 1995 for professional services rendered during the month of November,
was in the total amount of $2,225.00. The second invoice, dated December 29,
1995 for services rendered during the month of December was in the total amount of
$800. There was a third invoice which Bradway submitted for services rendered
during the month of January, 1996, but that invoice was not approved for payment
by the LBCJMA as submitted and was later resubmitted on February 1, 1996 with all
of the billings related to the State Ethics Commission deleted from the invoice.
"Cash Requirements Reports" are documents which are provided to LBCJMA
Board Members each month and which contain the list of vendors or professional
people doing business with the Authority, the date of their bill, description of the work,
and the total cost of the bill. The Findings establish that the Cash Requirements
Report for December, 1995 listed an invoice in the amount of $5,396 from Bradway's
firm for services of which $2,225 related to the State Ethics Commission
investigation. Likewise, the Cash Requirements Reports for January, 1996 included
an invoice in the amount of $3,082 from Bradway's firm of which $800 was for the
legal services provided by Bradway as to the State Ethics Commission investigation.
Huhn participated as to the Board's approval of invoices for Bradway's
representation of the LBCJMA Board Members before the State Ethics Commission as
follows. On December 19, 1995, Pekarski made the motion, second by Huhn, to
approve, and Huhn participated with the unanimous Board in voting to approve, the
December, 1995 accounts payable for Bradway's professional services as to the State
Ethics Commission investigation. On January 22, 1996, Huhn was present and voted
as to the motion by Czyzyk, second by Servis, to approve the January, 1996 accounts
including one payable to Bradway for professional services rendered as to the State
Ethics Commission investigation. The facts before us do not reveal which way Huhn
voted.
LBCJMA Member Armstrong contacted this Commission in mid - November,
1995 on the subject of using government funds for personal legal representation. In
a November 21, 1995 executive session of LBCJMA, Armstrong voiced his opposition
to the use of the Solicitor to defend the Board Members as to matters of alleged
improprieties.
Bradway's firm, Cordisco & Bradway, reimbursed $2,525 to LBCJMA in
December, 1996, which fees related to the representation services of the Board
Members. Further, on March 31, 1997 the firm reimbursed an additional $562.50 to
LBCJMA so that all monies were repaid.
Lastly, the findings reflect that the Board Members understood that Bradway
would not bill the Authority for their representation but due to an oversight at
Bradway's office, certain legal services relating to representation of the SEC
proceeding appeared on Authority billings. As noted, such monies paid to Bradway
have been reimbursed to LBCJMA.
Huhn, 96- 022 -C2
Page 11
Having summarized the above relevant facts, we must now determine whether
the actions of Huhn violated Section 3(a) of Act 9 of 1989.
Huhn used the authority of office when he consented to the Solicitor's
representation of him (even though the formalities of a vote at a public meeting were
not observed). Huhn also used the authority of office when he participated as to the
Board's approval of payment by the Authority for the legal services that were
rendered.
As for the element of a private pecuniary benefit, 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. What
we must decide is whether the pecuniary benefit of publicly -paid legal representation
before the State Ethics Commission was a private pecuniary benefit for Huhn or was
something to which he was entitled.
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
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
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: Dillion 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
Huhn, 96- 022 -C2
Page 12
allegations there was a statutory right to publicly provided legal counsel. Furthermore,
the case specifically did not involve charges of criminal misconduct.
Matter of Auditor's Report of McKean Township for 1984, 110 Pa. Commw.
Ct. 68, 531 A.2d 879 (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 Re Birmingham Township. Delaware County, 142 Pa. Commw. Ct. 317, 597
A.2d 253 (1991) 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 did
commit criminal conduct which results in removal from office.
Stork v. Sommers, 158 Pa. Commw. Ct. 65, 630 A.2d 984 (1993) 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
provided 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
alias
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
Huhn, 96- 022 -C2
Page 13
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 less 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.
Lam, 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.
In applying the judicially enunciated factors, we note that Huhn's prior case
before the Commission involved the allegation that Huhn violated Section 3(a) when
he used the authority of his office in such a way that he received compensation that
he was not entitled to receive. By virtue of a Consent Agreement, an unintentional
technical violation of Section 3(a) was found and Huhn was directed to make
restitution.
The representation of Huhn in the prior matter before this Commission was
personal in nature. The Solicitor's representation of Huhn pertained to matters that
were not necessary for the general conduct of municipal business and were not official
duties. Huhn was clearly not entitled to a publicly -paid defense. As noted above, the
Findings reflect that the Members understood that the Solicitor would not bill LBCJMA
for such services but bill the individual Members. However, through inadvertence, the
LBCJMA was billed for legal services as to the prior Commission proceeding.
We therefore find that Huhn violated Section 3(a) of Act 9 of 1989 when he
used the authority of his office for a private pecuniary benefit by participating in Board
Huhn, 96- 022 -C2
Page 14
discussions and /or actions resulting in the Solicitor for the Authority being retained at
Authority expense to represent him in the prior matter before the State Ethics
Commission.
This Commission has the statutory authority to order restitution. However,
since the findings reflect that all monies have already been reimbursed to the LBCJMA,
we will take no further action in this case.
Lastly, we note that the parties have filed a Stipulation of Findings and Consent
Agreement which sets forth a proposed resolution of the allegations. We believe that
the Consent Agreement is the proper disposition for this case based upon our review
as reflected in the above analysis and the totality of the facts and circumstances.
IV. CONCLUSIONS OF LAW:
1. William Huhn, as a Member of the Lower Bucks County Joint Municipal
Authority, is a public official subject to the provisions of Act 9 of 1989.
2. - Huhn violated Section 3(a) of Act 9 of 1989 when he used the authority of his
office for a private pecuniary benefit by participating in actions resulting in the
Solicitor for the Authority being retained at Authority expense to represent Huhn
in matters before the State Ethics Commission which culminated in the issuance
of Huhn, Order No. 1013.
In Re: William Huhn
ORDER NO. 1054
File Docket: 96- 022 -C2
Date Decided: 5/29/97
Date Mailed: 6/11/97
1. William Huhn, as a Member of the Lower Bucks County Joint Municipal
Authority, violated Section 3(a) of Act 9 of 1989 when he used the authority
of his office for a private pecuniary benefit by participating in actions resulting
in the Solicitor for the Authority being retained at Authority expense to
represent Huhn in matters before the State Ethics Commission which
culminated in the issuance of Huhn, Order No. 1013.
2. In that restitution has already been made to the Authority, no further action will
be taken and this case is closed.
BY THE COMMISSION,
j e A t 0.3(J t
DANEEN E. REESE, CHAIR