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HomeMy WebLinkAbout785-R BorlandIn re: William Borland STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: : Date Decided: : Date Mailed: 87 -148 -C April 5, 1991 April 15. 1991 Before: Helena G. Hughes, Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley Daneen E. Reese Roy W. Wilt The State Ethics Commission received a request for reconsideration on February 15, 1991, with respect to Order 785 issued on February 28, 1991. Pursuant to Section 2.38 of the regulations of the Commission, the discretion of the State Ethics Commission to grant reconsideration is properly invoked as follows: (b) Any party may ask the Commission to reconsider an order within 15 days of service of the order. The person requesting reconsideration should present a detailed explanation setting forth the reason why the order should be reconsidered. Reconsideration may be granted at the discretion of the Commission only where any of the following occur: (1) A material error of law has been made. (2) A material error of facts has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order and where these could not be or were not discovered previously by the exercise of due diligence. 51 Pa. Code §2.38(b). This adjudication of the Commission is hereby issued which sets forth the Discussion and Reconsideration Order. This Reconsideration Order and Order 785 are final and shall be made available as public documents on the fifth (5th) business day following the date of issuance of this Order. ADJUDICATION Discussion: Reconsideration is sought as to Commission Order 785 wherein we determined that William Borland, hereinafter Borland, as a Girard Township Supervisor violated Section 3(a) of Act 170 of 1978 when he used public office to obtain a financial gain for himself by voting to utilize the township solicitor to represent him at township expense in a lawsuit against the township auditors regarding the setting of his and one other supervisor's compensation as township employees (roadmaster /laborer). Restitution was ordered in the amount of $381.00 which was one half of the cost of the legal representation. The proffered basis for reconsideration is that we committed a material error of law in determining that the voting to authorize paid legal representation by the township solicitor for instituting a lawsuit against the auditors violated Section 3(a) of the Ethics Law. Three arguments are made in support of the above contention. First, it is argued that our reliance on Szvmanowski, Opinion 87 -002 is misplaced due to that opinion's reliance on Appeal from Auditor's Report of McKean Township, 69 Erie L.J. 56 (1986) which was reversed by Pennsylvania Commonwealth Court at 110 Pa. Commw. Ct. 68, 531 A.2d 879 (1987). An analysis of that decision of Commonwealth Court reflects that the case has no application to the instant matter. In the cited case, the auditors instituted a surcharge action against two supervisors which was dismissed by the Court of Common Pleas. The supervisors appealed the decision of the lower court because it imposed a limitation upon the supervisors' award of counsel fees. On appeal, Commonwealth Court interpreted Section 563 of the Township Code to allow counsel fees only if the case involved an appeal from the township auditors' report or settlement of the account of any township office and secondly if an amount of money was recovered by the township. Commonwealth Court remanded the case, based upon its holding that the lower court could not limit the supervisors' counsel fees since the above conditions did apply in the case. The institution of legal proceedings in the instant matter did not involve an appeal of a report or settlement of an account nor was any money recovered by the township. To the contrary, the employee - supervisors were seeking an increase in their hourly rate as roadmaster /laborer which would be to the financial detriment of the township. Thus, there is no statutory basis under the Second Class Township Code for recovery of counsel fees under the factual circumstances of this case. Clearly, the case of In Rg: Roofner's Appeal, 81 Pa. Super 482 (1923), which we considered in the base Order is on point. These supervisors brought the action against the auditors regarding the setting of their hourly rate as roadmaster /laborer which relates to their working positions as township employees and not as elected supervisors. Hence, such legal fees were incurred for a private purpose in their capacity as township employees and not for a public purpose as to the elected office of township supervisors. Mr. William Borland Page 2 The second argument asserts that the General Assembly did not intend for a township supervisor to face a financial burden of challenging what he considers an inadequate wage. The provision which authorizes auditors to set the wages for supervisors as township employees is set forth in Section 515(a) of the Second Class Township Code which makes no allowance for counsel fees for supervisors who seek to challenge such wages. As noted above, Section 563 does make an allowance for counsel fees under certain circumstances which are . not applicable herein. In the third and final argument, ,it is asserted that these township supervisors did not become a roadmaster /laborer for the " purpose of personal financial gain and the General Assembly did not intend supervisors to pay their own counsel fees in challenging "...the Township Auditors [who] have set the wages arbitrarily low... ". The facts in this case belie the above assertion in t these supervisors are working employees who do receive compensation at an hourly rate set by the auditors and who have challenged that rate because they sought a higher hourly rate. Thus, these supervisors, as township employees, did have a purpose of financial gain; there is no basis in law for the payment by the township of their counsel fees in such circumstances. As to the legislative intent argument,.ige must conclude that the General Assembly did intend for these supervisors to pay for their counsel fees in such cases because there is no statutory authority for paid counsel fees under these circumstances. Upon review of the Order in conjunction with the arguments which have been made, no material error of law has been shown which would warrant reconsideration. In re: William Borland s File Docket: 87 -148 -C : Date Decided: April 5, 19 1 : Date Mailed: April. 15. 1991 Reconsideration Order 785 -R 1. The request by William Borland to reconsider Order 785 . issued on February 28, 1991 is denied. 2. Borland is directed to comply with the terms of Order 785 within thirty (30) days of the date of issuance of this Reconsideration Order. 3. Failure to comply with paragraph 2 will result in the referral of this matter to the appropriate law enforcement authority for review and appropriate action. BY THE )ELENA G. HUGHES, CHAIR