HomeMy WebLinkAbout785 BorlandADJUDICATION
I. Allegation: That you, a Girard Township Supervisor, violated the
following provisions of the State Ethics Act (Act 170 of 1978), when
you voted to pass a resolution authorizing the township solicitor to
represent you in a court action against the township auditors
regarding the setting of wages:
Section 3. Restricted Activities.
(a) No public official or public employee
shall use his public office or any confidential
information received through his holding public
office to obtain financial gain other than
compensation provided by law for himself, a member
of his immediate family, or a business with which
he is associated. 65 P.S. 5403(a).
II. Findings:
1. William Borland served as an elected Girard Township
Supervisor from 1982 through 1987.
2. Minutes of the Girard Township Auditor's meetings indicate
that the following compensation was fixed by the auditors in
1986 for the township roadmaster and supervisors as part
time laborers:
Roadmaster Pay - $375.00 Per Week
Supervisors as Part -Time Laborers - $6.00 Per Hour
3. In 1986, the township supervisors initiated a legal action
in the Erie County Court of Common Pleas against the
township auditors seeking to have the wages for township
supervisor /employees increased.
4. Minutes of the Girard Township Supervisors meetings reflect
the following in regard to authorizing the solicitor to
represent Supervisors Borland and Sanders in a suit against
the Township auditors:
a. January 16, 1986
Township Solicitor will be Attorney George Schroeck.
Chairman Borland said, at this time, he would like to
exercise a retainer fee number. On a motion by Ray
Sanders, Attorney Schroeck will be retained at the fee
of $100.00 per meeting and $50.00 per hour, same as in
the year 1985. Motion was seconded by Dan Douglas,
unanimous.
Present: Dan Douglas, William Borland, Ray Sanders.
In re: William L. Borland
STATE ETHICS COMMISSION ' '
30e FINANCE BUILPING
HARRISBURG, PENNSYLVANIA 17120
: File Docket: 87 -148 -C
: Date Decided: February 14, 199]
: Date Mailed February 28. 1991
Before: Robert W. Brown, Vice Chair
G. Sieber Pancoast
Dennis C. Harrington
Daneen E. Reese
Roy W. Wilt
The State Ethics Commission received a complaint regarding a
possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S.
401 et. seq. Written notice, of the specific allegation(s) was served
at the commencement of the investigation. A Findings Report was
issued and served, upon completion of the investigation, which
constituted the Complaint by the Investigation Division. An Answer
was filed and a hearing was waived. The record is complete. This
adjudication of the Commission is hereby issued which sets forth the
individual Allegations, Findings of Fact, Discussion, Conclusions of
Law and Order.
This adjudication is final and will be made available as a public
document fifteen days after issuance. However, reconsideration may be
requested which will defer public release of this adjudication pending
action on the request by the Commission. A request for
reconsideration, however, does not affect the finality of this
adjudication. A reconsideration request must be received at this
Commission within fifteen days of issuance and must include a detailed
explanation of the reasons as to why reconsideration should be granted
in conformity with 51 Pa. Code 52.38.
The files in this case will remain confidential in accordance
with Section 8(a) of the Ethics Act, 65 P.S. 408(a) during the fifteen
day period and no one unless the right to challenge this Order is
waived, may violate confidentiality by releasing, discussing or
circulating this Order. However, confidentiality does not preclude
discussing this case with an attorney at law.
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, 65 P.S. 409(e).
Mr. William L. Borland
Page 2
b. March 11, 1986:
Eugene Kwiatkowski questioned the suit being filed
against the auditors by the supervisors, using the
Township Solicitor. Eugene said Dan Douglas told him
that he was not aware of this action until he read it
in the paper. Dan Douglas said he was aware of the
action, but it was never brought up for approval by the
supervisors to proceed on it. Dan Douglas said he is
not contesting the wage. Dan Douglas said he was aware
of the proceedings, but he never gave word that he Eras
involved in it. Eugene asked Dan Douglas if he it
is justified to use Township expenses.
Schroeck said that he is in charge to represent the
board, and that is by legislative act. There is no
charge on the bill for that. Kwiatkowski questioned
six hours on last month's bill. He said that there
were three hours on that bill for the solicitor's fee
to file suit for the supervisors. He said that the
suit was filed on behalf of the supervisors, as
employees of the Township. Aren't they using the
Township Solicitor to try to attempt a financial gain
for themselves?
Schroeck said that he represents the supervisors.
Schroeck said that the board has a right to look into
anything they want and challenge it. Dan Douglas said
that he is having a problem with the solicitor's bill.
Motion by Dan Douglas, seconded by Ray Sanders,
unanimous, to approve the Financial Statement ending
February 28, 1986.
Motion by Dan Douglas, seconded by Ray Sanders,
unanimous, to approve the invoices for payment.
Present: Borland, Douglas, Sanders
c. April 8, 1986:
Chairman said that the supervisors, by resolution, .
directed the Township's Solicitor to represent us in
our court case against the auditors, so he asked for a
motion for a resolution to that effect. Ray Sanders
made the motion, Dan Douglas said he is not supporting
this motion, William Borland made the second. Vote:
Ray Sanders and William Borland voted yes, and Dan
Douglas voted no. So registered.
Mr. William L. Borland
Page 3
Present: Borland, Douglas, Sanders
5. At the March 20, 1986 meeting of the Girard Township
Auditors, Ted Padden was appointed Attorney for the Board of
Auditors at a rate of $75.00 per hour, subject to the
approval by the court.
The motion to hire Padden was passed on a two to one vote,
Korb Bryant and Joyce Dale voted in favor, and Charles
Graham abstained. Attorney Padden was appointed to
represent the auditors against the case the supervisors
brought regarding wages.
6. Records of Girard Township indicate the following regarding
the employment of counsel by the supervisors and auditors:
a. By way of letter, dated February 26, 1986, from
Auditor, Joyce Dale, the supervisors are advised of
the auditor's intention to employ legal counsel to
represent them in the action taken by the supervisors
against the auditors. (Case #432 -A -1986 in the Erie
County Court of Common Pleas).
b. By way of letter dated April 9, 1986 from Township
Clerk, Connie Scalise, to Al Wehan of the law firm of
Schroeck, Segel and Murray, the firm is advised of the
resolution of the supervisors authorizing
representation of them in the court case against the
auditors.
7. Records of Girard Township indicate the following invoices
from the law firm of Schroeck, Segel and Murray, P. C. for
services provided to Girard Township, in relation to
representation of the supervisors in the compensation suit
against the auditors:
a. February 7, 1986:
January 13, 1986 - Phone Conference With Supervisors -
.5 Hours
January 23, 1986 - Prepare Motion Re: Roadmaster
Salaries - 6.0 Hours
January 30, 1986 - Filing Fee at Court House Re:
Roadmaster Salaries - $40.50
January 31, 1986 - Erie County Sheriff Service Res
Roadmaster Filing - $44.00
Mr. William L. Borland
Page 4
b. March 28, 1986:
March 14, 1986 - Phone Conference With Bill Borland Re:
Township Auditors Appeal - .1 Hours
March 27, 1986 - Research and Letter Re: Supervisors
Compensation - 2.25 Hours
December 3, 1986 - Prepare a Motion Re: Roadmaster
salary original time reported on January 23, 1986, was
6 hours, correct time was 2 hours. Credit issued 4
hours at $50.00 per hour.
c. May 2, 1986:
April 22, 1986 - Review Petition to Approve Counsel
Fees and Response Letter - .5 Hours
April 28,
Hearing -
April 29,
Hearing -
e. June 30, 1986:
1986 - Preparation
.75 Hours
1986 - Preparation
1.75 Hours
for Roadmaster's Pay
for Roadmaster's Pay
April 29, 1986 - Hearing at Judge Juiliante's Court
Room - 2.25 Hours
d. May 30, 1986:
May 12, 1986 - Two Phone Conferences With Betty Bell
Re: Roadmaster's Pay Increase - .2 Hours
June 5, 1986 - Phone Conference With Supervisors -1.0
Hours
June 25, 1986 - Argument Re: Wage Order - .5 Hours
f. August 2, 1986:
June 25, 1986 - Prepare Document for Wage Case - .3
Hours
July 1, 1986 - Stipulation and Order Re: Roadmasters
Wages - .75 Hours
July 2, 1986 - Phone Conference With Supervisors
Mr. William L. Borland
Page 5
g.
(Attorneys Schroeck and Wehan) and Research - 3.0
Hours
July 7, 1986 - Letter to Attorney Padden Re:
Stipulation and Order Re: Roadmaster Wages - .2 Hours
October 1, 1986:
September 5, 1986 - Letter to Supervisors Res
Roadmaster's Pay - .25 Hours
8. Records of Girard Township indicate the total amount of fees
charged to and paid by the Township, in the legal action
taken by the supervisors against the auditors is as follows:
16.3 Hours at $50.00 Per Hour - $815.00
Filing Fee - $40.50
Sheriff Service Fee - $44.00
Total - $899.50
9. Payment for the .5 hours on January 13, 1986 and 2.25 hours
on March 27, 1986, which was included in the funds noted in
Finding 8 above, was not in relation to the compensation
suit:
a. The total cost to the township for your representation
in the compensation suit was $762.00.
10. Dan Douglas, former Girard Township Supervisor, who served
with Borland and Sanders in 1986, was not in favor of the
suit brought against the auditors or of using Township funds
to pay the solicitor to represent the supervisors in this
case.
11. Auditor Charles Graham thought the wages set for the
supervisors by the auditors in 1986, were unfair, and that
he voted against hiring an attorney to represent the
auditors because he felt it could be worked out.
12. Former Township Solicitor George Schroeck researched the
situation before he agreed to represent the supervisors in
the case against the auditors regarding wages. He based his
decision to represent the supervisors on this research. He
found court documents that showed that the solicitor
represents the Township and the supervisors acting as
roadmasters. He cited the case of Ballou versus the State
Ethics Commission for a determination of the solicitor's
duties and Silver versus Downs for specific reference to the
Girard case.
Mr. William L. Borland
Page 6
13. Girard Township Auditor, Joyce Dale, recalled that the
auditors were made aware of the suit against them by
letter. The auditors retained Attorney Ted J. Padden and
informed the supervisors of that fact in a letter dated
February 26, 1986. The auditors cut the
supervisor /laborers pay because they were not operating
equipment but were only acting as general laborers.
Supervisor /roadmaster Borland's wages were kept the same.
III. Discussion: William Borland, hereinafter Borland, as an elected
Girard Township supervisor was a public official as that term is
defined under the Ethics Act. 65 P.S. S402; 51 Pa. Code S1.1. As
such, his conduct is subject to the provisions of the Ethics Act and
the restrictions therein are applicable to him.
Initially, it is noted that Section 5 of Act 9 of June 26, 1989
provides, in part, as follows:
"This amendatory act shall not apply to
violations committed prior to the effective date
of this act, and causes of action initiated for
such violations shall be governed by the prior
law, which is continued in effect for that purpose
as if this act were not in force. For the
purposes of this section, a violation was
committed prior to the effective date of this act
if any elements of the violation occurred prior
thereto."
Since the occurrences in this case transpired prior to the
effective date of Act 9 (June 26, 1989), we must apply the provisions
of Act 170 of October 4, 1978, P.L. 883 to determine whether the
Ethics Act was violated.
Under Section 3(a), quoted above, this Commission has determined
that use of office by a public official to obtain a financial gain for
himself or a member of his immediate family or a business with which
he is associated which is not provided for in law transgresses the
above provision of law. Thus, use of office by a public official to
obtain a financial gain which is not authorized as part of his
compensation is prohibited by Section 3(a): Hoak /McCutcheon v. State
Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet
v. State Ethics Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536
(1987). Similarly, Section 3(a) of the Ethics Act would prohibit a
public official /employee from using public office to advance his own
interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19,
540 A.2d 1374 (1988). Likewise, a public official /employee may not
use the status or position of public office for his own personal
advantage; Huff, Opinion 84 -015.
Mr. William L. Borland
Page 7
In this case we must determine whether Borland as a supervisor
violated Section 3(a) of the Ethics At quoted above regarding the
utilization of the township solicitor to represent him in a court
action against the township auditors regarding the setting of his
wages as an employee supervisor.
Factually, Borland served as a township supervisor from 1982
through 1987. After the Girard Township auditors set the compensation
for working supervisors in 1986 at a rate of-$375 per week for a
roadmaster and $6.00 per hour for supervisors who worked as part -time
laborers, the township supervisors instituted: legal action in the
Court of Common Pleas of Erie County against the auditors seeking an
increase in their wages as a township supervisor- employees.
The minutes of the January 16, 1986 meeting of the Girard Township
supervisors reflect that Attorney George Schroeck was retained as
township solicitor. It is reflected in the March.11, 1986 meeting
minutes that township auditor Eugene Kwiatkowski questioned the
propriety of the supervisors utilizing the township solicitor for
representation in their law suit against the township. In particular,
Kwiatkowski objected to the fact that the supervisors were utilizing
the solicitor to file the lawsuit, not in their capacity as
supervisors but as employees of the township. Solicitor Schroeck
responded that he represented the supervisors and that the board had
the right to look into the matter.
Thereafter at the April 8, 1986 meeting, Supervisor Ray Sanders
made a motion that the township solicitor represent them in a court
action against the auditors which motion was seconded by Borland. The
motion carried by a two to one vote with Sanders and Borland voting in
favor of the motion and Supervisor Dan Douglas voting against it.
Thereafter, the Girard Township Board of Auditors retained their own
counsel to defend the court action which was filed by Borland and
Sanders. Auditor Charles Graham voted against the motion on the
basis that the wages set by the auditors were unfair; he also voted
against retaining counsel to represent the auditors because he
believed the matter could be worked out.
Similarly, Supervisor Dan Douglas opposed the filing of the law
suit against the auditors or of using township funds to pay the
solicitor to represent the supervisors in the matter. The record
reflects that the total cost incurred by the township for the legal
representation of Borland and Sanders amounted to $762. Township
Auditor Joyce Dale concurred in the retaining of counsel by the
township auditors. The auditors cut the supervisor - laborers pay since
they were not operating equipment and were only acting as general
laborers; in addition, Borland's compensation as roadmaster was not
lowered but merely maintained at the current rate.
Mr. William L. Borland
Page 8
In applying the provisions of Section 3(a) of the 'Ethics Act
quoted above to the instant matter, we believe the actions of Borland
in retaining the township solicitor for representation in a law suit
against the township violated Section 3(a) of the Ethics Act. Clearly
there was a use of office on the part of Borland in that he seconded
and voted in favor a motion to retain the township solicitor for legal
representation in the law suit': The use of office resulted in a
financial gain since Borland and Sanders did not have to pay the $762
in legal fees generated by the solicitor which were paid by the
township. Since Borland and Sanders did not have to personally pay
for their legal representation, they were enhanced by the out -of-
pocket expenses they would otherwise have had to pay. We must now
determine whether the financial gain is compensation provided for by
law.
This Commission considered the issue of whether a township
supervisor could obtain legal representation at township expense
regarding the amount of compensation fixed by the auditors in
Szvmanowski, Opinion 87 -002. In the cited opinion, the requestor
sought advice as to whether either the township solicitor could be
'utilized or whether the requestor could obtain private counsel who
would be paid the township regarding his representation in the law
suit against the township. In that case, we opined that the Second
Class Township Code did not authorize for such representation which
was in the nature of a private or personal action against the township
by the supervisor:
While there may be an appropriate mechanism
for a supervisor, to recover legal expenses if he
must challenge the auditors report regarding the
fixing of salary, such mechanism is not provided"
for in the Second Class Township Code and
therefore, a supervisor who uses his position to
secure funds to obtain such legal representation
or who employs the services of the township
solicitor to do such is receiving a financial gain
that is not part of the compensation provided for
by law. The receipt of such gain through the use
of one's public office would thus not be in accord
with the provisions of the State Ethics Act. b5
P.S. §403. See also, Appeal from Auditors' Report
of McKean Township, 69 Erie L.J. 56, (1986).
The instant situation does not arise out of
any official action that you have performed.
Rather, arises from your belief that the
compensation fixed for you by the auditors is not
appropriate for the services that you are
performing. We thus believe, that your processing
of this matter is clearly one of a personal and
Mr'. William L. Borland
Page 9
individual nature and not related to your
official actions. As such, we do not believe that
a township supervisor may utilize township funds
to employ representation in pursuit of a personal
legal action against the township. Id. at 4.
See also Herlands, Advice 88 -592, wherein it was determined that
the township solicitor or private counsel at township expense could
be utilized by supervisors in defending in a surcharge action
instituted against them by the auditors regarding the propriety of
their mileage reimbursements and the receipt of health care benefits.
In Roofner's Appeal, 81 Pa. Super. 482, a A.2d (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. The court in deciding that
the supervisors were charged with official misconduct and hence not
entitled to representation at township expense, reasoned as follows:
"the 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.
funds..
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
Mr. William L. Borland
Page 10
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. Davis, 493 Pa. 50, 425 A.2d 359 (1981), the
Pennsylvania Supreme Court allowed representation by a solicitor in
recall action against two members of the boards of supervisors.
However, in the cited case, such related to the official action and
office of the township supervisors and did not involve matters of
possible misconduct or matters which would be considered personal and'
private in nature.
Therefore, based upon the statutory restriction of Sect'pn "3'(a) of
the Ethics Act, the prior precedent of this Commission as wdll as
judicial precedent, we find a clear violation of Section 34a) of the.
Ethics Act regarding the utilization of the township solicitor at
township expense.
In the instant matter, the township expended $762 for ,the
representation of Borland and Sanders. The power of this Commission
to order restitution by public officials /employees who have beexi,
enriched at the expense of their governmental body has been upheld by
Commonwealth Court. See Yacobet v. State Ethics Commission, supra.
Since the foregoing expenditure has been made on behalf of both
Borland and Sanders, it is fair and appropriate that Borland pay one
half of the amount to the township as restitution. Accordingly,
Borland is hereby directed within thirty days of the date of this
order to forward a check to this Commission payable to Girard Township
in the amount of $381.00. Failure to comply with the foregoing
provision will result in the referral of this matter to - the
appropriate law enforcement authority.
IV. Conclusions of Law:
1. William Borland as a Girard Township supervisor was a public
official as defined under the Ethics Act.
2. Borland violated Section 3(a) of the Ethics Act when he seconded
and voted in favor of a resolution to retain the township
solicitor to represent him at township expense in a law suit filed
against the township auditors regarding the amount of his
compensation as a township employee.
In re: William L. Borland
: File Docket: 87 -148 -C
: Date Decided: February 14. 199k
: Date Mailed: February 28. 1991
ORDER No. 785
1. William Borland as a Girard Township Supervisor violated
Section 3(a) of the Ethics Act when he seconded and voted in
favor of a resolution to retain the township solicitor to
represent him at township expense in a law suit filed
against the township auditors regarding the amount of his
compensation as a township employee.
2. Borland is hereby ordered within 30 days of the date of the
issuance of this order to forward a check to this Commission
in the amount of $381.00 payable to the order of Girard
Township.
3. Failure to comply with the provisions of paragraph 2 will
result in the referral of this matter to the appropriate law
enforcement authority for review and appropriate action.
BY THE COMMISSION,
vi,,d
ROBERT W. BROWN, VICE CHAIR