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HomeMy WebLinkAbout1131 SuskoIn Re: Paul Susko 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 Louis W. Fryman John J. Bolger Frank M. Brown Susan Mosites Bicket 94- 025 -C2 Order No. 1 131 8/30/99 9/7/99 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 e_t sgg., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegations. 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 waived. The record is complete. A Consent Agreement was submitted by the parties to the Commission for consideration which was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was replaced by the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 gt fig., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under that Act. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and 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 the Ethics Act. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Susko, 94- 025 -C2 Page 2 I. ALLEGATION: That Paul Susko, a public official /public employee in his capacity as solicitor for the City of Erie, Erie County, violated Sections 1103(a) and 1103(f) of the Public Official and Employee Ethics Act (Act 93 of 1998) when he sub - contracted with the city's police liability insurance carrier to provide legal services to city officials; and Section 1103(a) of the Ethics Act when he utilized resources of the city solicitor's office including but not limited to clerical staff, equipment and supplies, and research documents to assist in his private representation of city officials. 11. FINDINGS: 1. Paul Susko served as Erie Solicitor from January, 1990, through April 30, 1994. a. Susko was appointed as the full time City Solicitor by Mayor Joyce Savocchio. b. Susko's appointment was not ratified by Erie City Council. c. Mr. Susko's status as a full time publicly employed solicitor was affirmed by the Pennsylvania Supreme Court in P.J.S. v. State Ethics Commission, 723 Pa 174, _A.2d. 1999. 2. Susko retained a private legal practice while serving as City of Erie Solicitor, which was approved by the Mayor in advance of his appointment as Solicitor. 3. On July 16, 1991, David Johnson died while in the custody of the Erie City Police. 4. Attorney Melvin T. Toran was retained to represent the interests of the parents, children, beneficiaries, and personal representatives of David Johnson within days of Johnson's death. a. In September, 1991, Attorney Toran, on behalf of the plaintiffs, notified City Solicitor, Paul Susko, of his intent to file suit. 5. Erie City Council passed a Resolution dated September 4, 1991, referring the Notice of Intent to file suit regarding the death of David Johnson, to the Office of the City Solicitor. 6. Following Johnson's death on 07/16/91 numerous activities took place including an investigation into the police officer's conduct; an internal investigation of policy and procedures by the police department; and a Coroner's Inquest. a. As City Solicitor, Paul Susko was involved in collecting information; interviewing witnesses; reviewing police reports; preparing witnesses for the inquest; acting as liaison for interested parties and outside legal council and monitoring all aspects of the case. b. None of the assistant solicitors were involved in the Johnson case. c. At that time, the Solicitor's office employed a full -time Assistant Solicitor, Christine Ferguson; one full -time Secretary, Faye Jackson; three part-time Assistant Solicitors, Gregory Karle, Robert Brabender, and Gerald Villelia; and one Paralegal, Judy Chapman. Susko, 94- 025 -C2 Page 3 7. Beginning on July 24, 1991, through December, 1991, Susko, as City Solicitor received correspondence and legal documents from Johnson family attorney, Melvin Toran, advised the Mayor of developments, corresponded with the County Coroner, discussed the case with members of the Erie Police Department and participated in the Coroner's Inquest. 8. The City Solicitor's office did not usually provide representation for police liability cases after the City was served with a lawsuit. a. The city's police liability insurance carrier provided such legal representation. 9. Erie Police Lieutenant Donald Levis was assigned by the Chief of Police to investigate the death of Johnson on or about July 24, 1991. a. In preparation for the coroner's inquest, he interviewed and took sworn statements from potential witnesses and prepared reports on his investigative activities. 10. As part of his investigation Levis had contact with Erie City Solicitor Susko. a. Levis received direction from Susko regarding the review of police files by the plaintiff's attorney. b. Levis filed an Incident Report on September 2, 1991, which reflected his receipt from Chief DeDionisio, of an 08/26/91 memo, from Susko, which requested that a number of individuals be contacted in preparation for the inquest. Levis noted: "Above items submitted to Susko by the investigator. All interviews and copies of statements submitted by this investigator to Susko." 11. On January 28, 1993, Attorney Toran filed a Complaint in the United States District Court for the Western District of Pennsylvania, on behalf of the Plaintiffs. a. The defendants named in the Complaint included The City of Erie; City of Erie Police Department; Mayor Joyce Savocchio, individually and in her capacity as Mayor of Erie; Chief Paul DeDionisio, individually and in his capacity as Chief of Police of Erie; Charles Bowers, David Schroeck, William Peters, Luke Yates, and Does 1 -7, as Police Officers of the City of Erie. 1) The Erie Police Department was dismissed as a defendant by Court Order on October 7, 1993. 12. On February 19, 1993, Susko, in his capacity as Solicitor, accepted service at the Solicitor's office of the Notice of a Civil Action filed in the U.S. District Court of the Western District of Pennsylvania on behalf of The City, Police Department, Mayor and Chief. 13. The City of Erie insured the Erie Police Department through a Law Enforcement Officers Liability Policy by Western World Insurance Company, Policy #L.E.L. 17049. Susko, 94- 025 -C2 Page 4 14. Western World was notified of the lawsuit in February, 1993, after the complaint was filed in the United States District Court for the Western District of Pennsylvania. 15. The Law Firm of Murphy Taylor Trout, P.C., was initially retained by Western World to represent all of the defendants named in the Complaint. a. Attorney Gary Bax was assigned to the case by the firm and entered his Appearance on March 4, 1993. 16. In his capacity as City Solicitor Susko continued to be involved in the Johnson case following the filing of the lawsuit and after Attorney Bax entered his Appearance on behalf of the defendants. a. Susko wrote ; a memo on City letterhead to Mayor Savocchio and Chief DeDionisio, dated February 19, 1993, advising of the Acceptance of Service on their behalf and after reviewing it, he would discuss the complaint with each defendant. b. Susko wrote a memo on City letterhead to Chief DeDionisio, dated February 22, 1993, requesting that two copies of all police reports, interviews, and investigative material be compiled in connection with the Johnson case be prepared, in order to reply to the complaint. c. Susko received a letter at his City office from Attorney Bax dated March 19, 1993, requesting his review and comment of the defendant's Motion to Dismiss and /or Strike and defendant's Petition for Disqualification of U. S. Magistrate Judge Hawk - Kelley. d. Susko received communication from Attorney Bax at the office of City Solicitor dated May 11, 1993, requesting his review and comment regarding the plaintiff's request for production of documents and the proposed objections prepared by Bax. e. Susko provided a copy of the City's Public Officials and Employees Liability Insurance Policy in effect for 1993, to Attorney Bax, dated June 10, 1993. 17. Susko received correspondence from Western World Insurance Company, dated March 17, 1993, acknowledging receipt of the Summons and Complaint filed in conjunction with the Case of Johnson vs. The City of Erie. a. The letter was directed to Paul Susko at the City Solicitor's Office in the City Municipal Building. b. Western World outlined the coverage. c. Also outlined were the situations in which the coverage would not apply. d. Noted was that the incident which occurred on July 16, 1991, was not disclosed to Western World until February 25, 1993, which could be cause to disclaim coverage. e. Western World acknowledged investigation of the incident and claims, and defense of those named in the suit. f. Western World retained the law firm of Murphy Taylor & Trout, of Erie, Pennsylvania (Gary Bax). • Susko, 94- 025 -C2 Page 5 The letter was drafted by Suit Examiner, David Pyper, Western World Insurance Company. h. Paul Susko, in his capacity as Solicitor, faxed the four page letter to Gary Bax, Esquire, and Ronald Franklin, Insurance Broker. 18. In his capacity as Solicitor, Susko received communication from Attorney Gary Bax dated October 8, 1993, regarding a Court ruling on the defendant's motion to dismiss and /or strike the plaintiff's second amended complaint. a. The defendant's motion to dismiss the plaintiff's fourth claim for relief regarding Indemnity Obligations of the City of Erie under the Pennsylvania Municipal Subdivision Tort Claims Act was granted. b. The plaintiff's claim for punitive damages against the City of Erie and defendants in their official capacities was also stricken. c. The City of Erie Police Department was dismissed as a defendant. d. Answers were to be filed on the merits of the remaining claims set forth in the plaintiff's amended complaint. e. The correspondence was directed to the Office of the City Solicitor. 19. In a memo dated October 22, 1993, Susko advised Mayor Savocchio of a conversation he had with Karl Pfeffer of Western World Insurance. a. Pfeffer desired to hold a meeting to discuss the various issues of the Johnson Case and requested the Mayor's presence along with Susko, Pfeffer, their Corporate Counsel, and Michael Sotland. 20. Susko received correspondence dated November 23, 1993, from Coregis Insurance Company, the holder of the City's Public Officials and Employees Liability Policy, outlining the coverage and conditions under which the company would not cover a claim. g. 21. Acting on the advice of Attorney Bax, Western World retained separate legal counsel for specific defendants due to the potential for conflict of interests in the defenses of the various named parties. a. Attorney Nora Barry Fischer, of the Law Firm of Pietragallo Bosick & Gordon, Pittsburgh, Pennsylvania, was retained to represent Officer Charles Bowers. 22. On or about October 6, 1993, Western World Claims Examiner /Secretary, Michael Sotland, discussed with Susko, the need to retain separate counsel to represent specific defendants, and believed that the City Solicitor's Office should represent the City, Mayor, and Police Chief. a. Susko participated in the discussion in his capacity as Solicitor. b. Susko disagreed with Sotland's analysis that the policy did not provide legal coverage for the City, Mayor, and Chief. c. The conversation is reflected in a memo to the file by Susko, dated October 6, 1993. Susko, 94- 025 -C2 Page 6 23. Sometime after Susko's discussion with Sotland on or about October 6, 1993, and November 16, 1993, Western World offered to retain Paul Susko to defend the three defendants, the City, Mayor and Police Chief in the Johnson matter. 24. By way of letter, dated November 16, 1993, Paul Susko responded to Western World's offer to represent the three defendants, the City of Erie, Mayor Savocchio, and Chief DeDionisio, in the case brought against the City by the Estate of David Johnson. a. The letter confirmed a recent conversation that Susko had with Michael Sotland, Assistant Secretary, Senior Claims Examiner, Western World Insurance Group. b. An agreed upon fee of $ 100.00 per hour was stated. c. As requested by Western World, Susko would provide a Waiver of Conflict from each of the defendants. d. This letter was on the letterhead of Paul J. Susko, Attorney At Law. 25. Western World offered the position of defense counsel for the Mayor, Police Chief, and City of Erie to Susko for several reasons: a. As a prosecutor in the 1980's, Susko had convicted the lead plaintiff, Patsy Rosenderry, of simple assault, which fact had been conveyed by Attorney Bax to Western World. b. He had been involved in the case since it's inception and had attended the various hearings and proceedings; c. To keep good relations in tact since he knew and worked with the parties involved; d. To facilitate access to records and information; e. Was politically knowledgeable about the inner workings of the City. f. With eight years of experience as a former prosecutor, Susko was very familiar with the law concerning arrest situations, which was critical in the Johnson case. 26 Western World Corporate Counsel, Harry Yospin, had two areas of concern in retaining Susko to represent three of the defendants. a. Whether Susko was permitted to practice law outside of his office as Erie City Solicitor, and, if so, whether there was a conflict in the City Solicitor representing three of the same individuals (entities) in a private capacity; b. Would the Mayor, Police Chief, and City of Erie, be willing to sign a Waiver of Conflict allowing Susko to represent all three of them? 27. Susko assured Western World Assistant Secretary, Michael Sotland, that there was no conflict for him to represent the Mayor, Police Chief and City of Erie while also acting as Solicitor. Susko, 94- 025 -C2 Page 7 28. Sotland insisted that all correspondence regarding the Johnson case be sent to Susko's private office and not to the City Solicitor's office. 29. By way of letter dated November 19, 1993, Michael Sotland, Western World Insurance Company, provided Paul Susko with the suit papers and file regarding the claim of the Estate of David Johnson. a. A preliminary study of the file and a defense plan was requested from Susko at the earliest possible time. b. The plan should contain Susko's Opinion of Liability based on the trends in his jurisdiction and the estimated cost of the defense. c. Requests for additional investigation or information should be directed to the Examiner's attention for review evaluation and authorization. 30. Prior to accepting the offer of Western World to represent the three defendants in the Johnson matter, Susko advised Mayor Savocchio of the circumstances and received her authorization to proceed. a. Savocchio based her authorization on Susko's advice that no conflict of interest existed. b. Savocchio did not confer with any other legal counsel at that time. c. The Mayor later, at Susko's suggestion, sought and obtained a legal opinion from an outside law firm as to whether any conflict of interest existed. The answer received by the City from the outside law firm was that not conflict existed. 31. On November 24, 1993, Paul Susko, entered his Appearance on behalf of three defendants, The City of Erie, the Mayor and Police Chief in the case of Johnson et al v. City of Erie et al, filed in the United States District Court for the Western District of Pennsylvania. a. Susko continued to serve as City of Erie Solicitor until April 30, 1994. 32. Western World required Susko to obtain a Waiver of Conflict from each of the three defendants he was representing. a. Susko directed Assistant City Solicitor Villella to find a Waiver form from the solicitor's library as noted above. b. Villella took approximately one (1) hour preparing the Waiver on City time. c. Villella was earning $26.50 per hour at this time. d. The Waiver stated in part as follows: That the City, Mayor and Police Chief may need to assert defenses which are inconsistent or contradictory to the defenses of the individual police officers, thus requiring the City Solicitor to assert those defenses. That the further possibility of conflicting defenses among the City, the Mayor, and the Chief of Police is extremely remote under the facts and the applicable law; and such conflicts Susko, 94- 025 -C2 Page 8 should be waived; therefore, the City Solicitor is authorized to defend the City, the Mayor, and the Police Chief in this action, without the need for outside counsel being appointed. e. The waiver was prepared after Susko entered his appearance on behalf of the three defendants in U.S. District Court. 33. Utilizing the Waiver prepared by Villella, Susko eliminated references to "The City Solicitor" and replaced it with his name, as private attorney. a. The Waiver was presented to the Mayor and Chief by Susko in his capacity as a private attorney. 34. During the time that Susko was representing the defendants and acting as Solicitor, he utilized the equipment and staff of the Solicitor's office on matters relating to the Johnson case and his private representation of the three defendants on behalf of Western World. 35. Solicitor's office secretary, Faye Jackson, performed typing services for Susko, on City time utilizing City equipment, on matters relating to the Johnson case. a. Jackson was earning $12.50 per hour during this period as secretary. 36. On November 24, 1993, Susko entered his Appearance in U. S. District Court for the Western District of Pennsylvania, on behalf of the Defendants, City of Erie, Mayor Joyce Savocchio and Chief Paul DeDionisio in the matter of Johnson et al, v. City of Erie et al. a. Susko filed a Stipulation to Extend the Answer filing deadline consisting of a one page document which references Susko's private office address and phone number. b. The Stipulation was prepared by Faye Jackson, Secretary for the City Solicitor's office, using city equipment on City time. c. November 24, 1993, was the deadline by which to file the request for additional time to file the Answer. d. The additional time was necessary because the Mayor and Chief had not reviewed the complaint at that time. 37. By way of letter dated November 24, 1993, Susko had notified Attorney Toran of his representation of the three defendants. a. The reference initials indicate that the letter to Toran was typed by Faye Jackson, City of Erie Solicitor's Secretary. 38. As private counsel representing the three defendants, Susko filed an Answer to the Complaint, in U. S. District Court, on December 10, 1993. a. Susko's secretary became ill on December 9, 1993, left early and she was at home on December 10, 1993, with influenza. b. The Answer to the Complaint consisted of a twenty page document which was typed in the City Solicitor's office on December 9 and 10, 1993, which was the deadline for filing the Answers with the Court. Susko, 94- 025 -C2 Page 9 Both the Chief and the Mayor, due to annual budget sessions with City Council, had canceled several meetings with Susko scheduled at his office so that the Answers could be reviewed and finalized for filing. c. Hartman Personnel Services employee Krysta Brown reported to the Solicitor's office on December 9, 1993, to fill in for Faye Jackson who was off ill. d. Hartman Personnel Services billed the Solicitor's office for 5.25 hours at a rate of $8.55 per hour, for a total of $44.89. e. While Brown worked at the Solicitor's office, she typed the Answer for Susko. f. Faye Jackson finished typing the Answer on December 10, 1993. g. Gerald Villella spent approximately one (1) hour reviewing this document, on behalf of the City. Normally, a member of the City Solicitor's office was routinely requested to read an Answer filed on behalf of the City as a courtesy. h. The Answer was filed on December 10, 1993, which was the deadline for filing it. 39. On December 8, 1993, City Solicitor Secretary, Faye Jackson, sent a fax transmission to Paul J. Susko, Esquire, at his private office utilizing the equipment of the City Solicitor's Office. a. The fax transmission consisted of a general statement of duties of police officers for the City of Erie, including booking procedures, loading and unloading of prisoners, transportation of prisoners, sick, injured, or unconscious prisoners, and prisoners detained or admitted to the hospital. 40. Susko performed certain services relating to his representation of duties of the three defendants on behalf of Western World from the City Solicitor's Office and using City employees and equipment. 41. Susko was paid the following amounts by Western World Insurance Company for his representation of the City of Erie, Mayor and Police Chief, in the matter of Johnson et al v. City of Erie et al. (Susko did not bill Western World for any of the work performed at the City office, as the City had not reimbursed him for loaning some of his private office library books to the City Solicitor's office nor had they reimbursed him for his private secretary typing and copying City business. At no time did the City make any request for reimbursement under circumstances present. a. November 16, 1993, through April 30, 1994 - $14,275.00 b. May 1, 1994, through October 27, 1994 - $10.862.89 TOTAL $25,137.89 42. The retention of Paul Susko by Western World Insurance Company was not completed through advertisement or a bid process. a. There was no public notice of the contracting possibility and no public announcement of proposals received and the proposal accepted. Susko, 9.4- 025 -C2 Page 10 III. DISCUSSION: At all times relevant to this matter, the Respondent, Paul Susko, hereinafter Susko, has been a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, se . /Act .93 of 1998, Chapter 11, 65 Pa.C.S. §1101, et seq. The issue is whether Susko as the Solicitor for the City of Erie violated Sections 1103(a) and 1103(f) as to the allegations that he sub- contracted with the city's police liability insurance carrier to provide legal services to city officials; and Section 1103(a) when he utilized resources of the city solicitor's office including but not limited to clerical staff, equipment and supplies, and research documents to assist in his private representation of city officials. 65_ Pa.C.S. §1102. Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The term "conflict of interest" is defined under the Ethics Act as follows: Section 1102. 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. The term 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. Section 1 1 03(a) of the Ethics Act prohibits a public official /public employee 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. Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting. Section 1103. Restricted activities. (f) Contract. —No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any Susko, 9.4- 025 -C2 Page 11 contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. §1103(f). Section 1103(f) provides in part that no public official /public employee or spouse or child or business with which he or the spouse or child is associated may enter into a contract with his governmental body valued at five hundred dollars or more or any subcontract valued at five hundred dollars or more with any person who has been awarded a contract with the governmental body with which the public official /public employee is associated unless the contract is awarded through an open and public process including prior public notice and subsequent public disclosure. Having noted the issues and applicable law, we shall now summarize the relevant facts. Susko served as the Erie Solicitor, a full time position, from January, 1990, through April, 1994. The Mayor appointed Susko who was allowed to retain a private legal practice. In July, 1991, David Johnson died in the custody of the Erie City Police. Thereafter, the family and heirs of Johnson retained legal counsel for the purpose of filing a lawsuit against the City of Erie and certain individuals regarding Johnson's death. A Notice of Intent to File Suit was received and referred by City Council to the City Solicitor's Office which did not usually provide legal representation for police liability cases in that such matters were typically handled by the city's police liability insurance carrier. Following Johnson's death, numerous activities took place in the City of Erie: an investigation of the police officer's conduct; an internal investigation of the policy and procedures of the police department, and a Coroner's Inquest. As City Solicitor, Susko was involved in collecting information, interviewing witnesses, reviewing police reports, preparing witnesses for the inquest, and acting as liaison for individuals as to all aspects of the case. In January, 1993, a complaint in the U.S. District Court for the Western District of Pennsylvania was filed on behalf of the representatives of Johnson against the City of Erie, its Police Department, the Mayor, the Police Chief, and certain police officers. Susko, as Solicitor, accepted service of the Notice as to the lawsuit. The Erie Police Department was insured through Western World Insurance Company (WWIC) which was notified of the lawsuit. WWIC retained a law firm that assigned Attorney Gary Bax to represent the Police Department. Even after Bax entered his appearance, Susko, 94- 025 -C2 Page 12 Susko, as City Solicitor, continued to be involved in the Johnson case. Susko advised the Mayor and Police Chief that he would discuss the Complaint with each of them. Susko also requested copies of documents relative to the Johnson case. Susko received a letter from Bax requesting that Susko review and comment on Bax's Motion to Dismiss or Strike which he intended to file, as well as Susko's review and comment as to certain other matters in connection with the lawsuit. Susko continued to receive correspondence from WWIC as to the lawsuit. In November, 1993, Susko received correspondence from Coregis Insurance Company, the holder of the City's Public Official and Employee Liability Policy, about policy coverage and conditions. A representative of WWIC had a discussion with Susko regarding the need for separate counsel to represent specific defendants and the City Solicitor's Office to represent the City, the Mayor and Police Chief. Subsequently, WWIC offered to retain Susko to represent three defendants, that is, the City, the Mayor and Police Chief in the Johnson case. Susko was offered the representation of the three defendants by WWIC for a fee of $100 per hour provided he obtain a waiver of conflict from each of the defendants. The Corporate Counsel for WWIC had two concerns in retaining Susko to represent the three defendants: whether Susko was permitted to have a private law practice and, if so, whether there would be a conflict in him representing three of the same individuals in a private capacity; and secondly whether the Mayor, Police Chief and City would be willing to sign a waiver allowing Susko to represent all three of them. Susko gave his assurance that it would not be a conflict for him to represent the Mayor, Police Chief and the City while still acting as Solicitor. WWIC's Assistant Secretary insisted that all correspondence to Susko regarding the Johnson case be sent to Susko's private office and not to the City Solicitor's Office. Prior to accepting the offer of WWIC, Susko informed the Mayor and received her authorization to proceed. In November, 1993, WWIC provided Susko with the lawsuit papers and file regarding the Johnson case. - In November, 1993, Susko entered his Appearance on behalf of the three defendants while he continued to serve as Solicitor for Erie. Since WWIC required Susko to obtain a conflict waiver from each of the three defendants he was representing, Susko directed the Assistant City Solicitor to find a waiver form in the Solicitor's library. It took the Assistant City Solicitor approximately one hour to prepare the waiver which occurred during government working hours. Susko used the waiver, eliminated the references to City Solicitor and substituted his name as private counsel. During the time that Susko was representing the defendants and also acting as City Solicitor, he utilized the equipment and staff of the Solicitor's Office on matters relating to his private representation of the three defendants on behalf of WWIC. For example, the Secretary in the City Solicitor's Office performed typing services for Susko during government working hours using City equipment on matters relating to the Johnson case. When Susko was preparing to file an Answer to the Complaint in the Johnson case, a Secretary in the Solicitor's Office became ill. A temp agency was contacted to supply an employee to the Solicitor's Office who worked on typing the Answer for Susko. When the City Solicitor's Secretary returned to work, she completed typing the Answer. Susko received a total fee of $25,137.89 from WWIC for providing representation to the City, Mayor and Police Chief. Susko utilized employees and Susko, 94- 025 -C2 Page 13 equipment of the City Solicitor's Office of the City of Erie in performing such private legal representation of those defendants. Lastly, the retention of Susko by WWIC was not accomplished through an advertisement and bid process. There was no public notice of contracting and no public announcement of the proposals received or the proposal which was accepted. Having summarized the above relevant facts, we must now determine whether the actions of Susko violated Sections Section 1103(a) and 1103(f) of the Ethics Act. As to the allegation regarding the utilization of the City equipment and personnel for Susko's private legal work, the Stipulation of Findings filed by the parties reflects that there was a use of both City personnel and equipment by Susko as to his private legal representation of the defendants in the Johnson case. Such was a use of authority of office on the part of Susko. But for the fact that Susko was City Solicitor, he could not have utilized City personnel and equipment for his private business purposes. The use of authority of office by Susko resulted in a private pecuniary benefit. Such private pecuniary benefit consisted of the expenses that Susko did not have to pay out of pocket when he utilized City personnel and equipment for his private legal work. Lastly, the private pecuniary benefit inured to Susko himself. Accordingly, a technical violation of Section 1103(a) of the Ethics Act occurred when Susko as City Solicitor used City personnel and equipment to assist in his private legal representation of City Officials in a lawsuit. Our decision is consonant with prior Commission precedent where we have held that public official /employee's may not use government personnel, equipment, or facilities for private business purposes. See, Rakowsky, Order 943; Freind, Order 800. Regarding the allegation that Susko subcontracted with the City's police liability insurance carrier to provide legal services to City Officials, the Stipulation of Findings reflects that there were discussions between Susko and WWIC as to Susko's representation in a private capacity to defend the City, the Mayor and Police Chief in the Johnson case. However, the facts do not set forth any instance where Susko, as City Solicitor, used his position as a means of obtaining that private legal business. Accordingly, based upon the lack of such evidence, Susko did not violate Section 1103(a) of the Ethics Act regarding subcontracting with WWIC, the City's police liability insurance carrier, to provide legal services to City Officials. Lastly, as to Section 1 103(f) of the Ethics Act, this provision allows a public official /employee to contract with his or her governmental body but if such contract is $500 or more, it must be through an open and public process. The Stipulation of Findings reflect that there were contracts between the City and insurance carriers to represent of the City, the Police Department and City Officials. However, Susko is not associated with any of those businesses as that term is defined under the Ethics Act. In this case, one of those businesses, WWIC entered into a subcontract with Susko whereby he would provide private legal representation to the City, Mayor and Police Chief. Accordingly, since there was no contract between Susko and the City of Erie, we find that Susko did not violate Section 1103(f) of the Ethics Act regarding his subcontract with WWIC to represent the City, Mayor and Police Chief in the Johnson case. See, Sayer, Order 1075. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein it is proposed to resolve the case by finding a technical violation of Section 1103(a) of the Ethics Act regarding Susko utilizing resources of the city solicitor's office, including but not limited to clerical staff, equipment and supplies, and research documents to assist in his private representation of city officials; no violation of Section 1103(a) or (f) as to obtaining the contract; and a payment of $1000 within Susko, 94- 025 -C2 Page 14 30 days of the issuance of this Order by Susko through this Commission to Commonwealth of Pennsylvania. Accordingly, Susko is directed to make the payment of $ 1000 as noted above. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action. Lastly, as to the Stipulation of Findings and Consent Agreement, 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. Paul Susko, as a City Solicitor in the City of Erie, was a public Employee subject to the provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11. 2. Susko technically violated Section 1103(a) of the Ethics Act when he used resources of the city solicitor's office, including but not limited to clerical staff, equipment and supplies, and research documents to assist in his private representation of city officials. 3. Susko did not violate Section 1103(a) of the Ethics Act when he subcontracted with the city's police liability insurance carrier to provide legal services to city officials as there was no evidence of a use of authority of office by Susko. 4. Susko did not violate Section 1103(f) of the Ethics Act when he obtained a subcontract from Western World Insurance Company (WWIC), to represent city officials in that WWIC is not a business with which Susko is associated. In Re: -Paul Su_sko File Docket: - 94- 025 -C2 Date Decided: 8/30/99 Date Mailed: 9/7/99 ORDER NO. 1131 1. Paul Susko, as a City Solicitor in the City of Erie, technically violated Section 1103(a) of the Ethics Act when he used the resources of the city solicitor's office, including but not limited to clerical staff, equipment and supplies, and research documents to assist in his private representation of city officials. 2. Susko did not violate Section 1103(a) of the Ethics Act when he subcontracted with the city's police liability insurance carrier to provide legal services to city officials as there was no evidence of a use of authority of office by Susko. 3. Susko did not violate Section 1103(f) of the Ethics Act when he obtained a subcontract from Western World Insurance Company (WWIC), to represent city officials in that WWIC is not a business with which Susko is associated. 4. Per the Consent Agreement of the parties, Susko is directed to pay $1,000 through this Commission to the Commonwealth of Pennsylvania within thirty (30) days of the issuance of this order. a. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, DANEEN E. REESE, CHAIR