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HomeMy WebLinkAbout87-002 SzymanowskiIII. Discussion: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DECIDED Willy y 26 1987 MAILED D JUEL.2.4987 Joseph J. Szymanowski 87 -002 McKean Township Supervisor 2739 South Hill Road McKean, Pennsylvania 16426 Re: Township Supervisor, Securing Legal Representation In Suit Against Township, At Township's Expense Dear Mr. Szymanowski: ihis opinion is issued in response to your request of February 24, 1987. I. Issue: Whether a township supervisor may obtain legal representation at the expense of the township for the initiation of a law suit against the township auditors regarding the compensation fixed for the supervisor as township roadmaster. II. Factual Basis for Determination: You currently serve as a township supervisor in McKean Township, Pennsylvania. In your position, you are also appointed as a township roadmaster. You have requested the opinion of the State Ethics Commission regarding whether you, as a township supervisor, may utilize the services of the township solicitor in order to represent you in a legal action against the township board of auditors. This law suit stems from your belief that the township auditors have not fixed an appropriate compensation for you in your position as the township roadmaster. In the alternative you have requested an opinion as to whether you as township supervisor may authorize the township payment of legal fees to secure an independent counsel for the prosecution of this law suit. There is no doubt that as an elected township supervisor, you are a public ofiicial within the purview of the State Ethics Act. 65 P.S. §402; Welz, 86 -001. The law to be applied in review of the instant situation, is set forth in the State Ethics Act and provides as follows: Joseph J. Szymanowski Page 2 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. 403(a). Within the above provision of law, this Commission has reviewed a number of issues regarding various types of benefits that have been provided to public officials in and through their public position. Initially, it should be noted, that unquestionably the use of the township solicitor or in the alternative, the disbursement of township funds in order to obtain legal representation would clearly be a financial gain to the individual securing such representation. The issue, of course, with which we must be concerned is whether the financial gain received would be part of the compensation provided for by law for you as a township supervisor /roadmaster. In Pugliese, 84 -018, this Commission reviewed the issue of whether the Ethics Act would place any restriction upon a township supervisor securing legal services at the township's expense to defend a surcharge action that had been initiated against the official. Our review of that matter resulted in the conclusion that the cost of such a legal defense would be appropriate. We determined therein that even if the costs were considered compensation, the payment of these funds to a public official who was defending himself against a law suit that had resulted from actions he performed in his official capacity were specifically provided for by law in the Second Class Township Code. In the instant situation however, we believe that there are clear distinctions between our review of that matter and the facts as set forth herein. Initially in reviewing this issue, we must also, to some extent review portions of the township code in order to clarify your position in relation to this matter. The Second Class Township Code clearly permits township supervisors to serve in the capacity of township roadmaster and to receive appropriate compensation for such service. 53 P.S. §65516. The compensation that is set forth for supervisors so serving in an authorized position of employment, is to be fixed by the township board of auditors. 65 P.S. §65515. The township auditors in fixing said salary, are to be guided by the provisions as enumerated in the Second Class Township Code. A township supervisor who believes that the salary set for him by the township board of auditors, has a statutory remedy, also as provided for in the Second Class Township Code, to appeal the compensation that the auditors have set for him. 53 P.S. §165553; Synoski v. Hazel Township, Pa. Commw. Ct. , 500 A.2d 1282. Thus, as can been seen from the foregoing, the township code does in fact provide a Joseph J. Szymanowski Page 3 remedy for the township supervisor /employee who believes that his compensation has not been fixed appropriately. The issue, however, with which we are concerned is whether the supervisor may prosecute such an action against the township auditors at the expense of the township. Intitially it should be noted, that the township code provides as follows in relation to the duties of the township solicitor. §65582. Duties of solicitor The township solicitor, when directed or requested so to do, shall prepare or approve such bonds, obligations, contracts, leases, conveyances, ordinances and assurances to which the township may be a party; he shall commence and prosecute all actions brought by the township for or on account of any of the estates, rights, trusts, privileges, claims, or demands, as well as defend all actions or suits against the township, or any officer thereof, wherein or whereby any of the estates, rights, privileges, trusts, ordinances, or accounts, of the township, may be brought in question before any court in the Commonwealth, and shall do every professional act incident to the office which he may be authorized or required to do by the board of supervisors or by any resolution. He shall, whenever required, furnish the board of supervisors, or any of them, with his opinion in writing upon any question of law which may be submitted by any of them in their official capacities. Clearly the foregoing indicates, that the duties of the township solicitor are to be exercised in relation to the official conduct of the township supervisors. In the instant situation, however, your challenge to the auditors fixing of compensation does not appear to be something that is being transacted in your official capacity as a township supervisor. Rather, your action in this respect is more individual to your own specific situation and is in relation to your position as an employee. In this respect, it would seem inconsistent for the township to provide legal representation or the funds to secure such representation for you when you are in effect suing the township. The law suit which you contemplate initiating, is one of a personal nature rather than official action. Mount Pleasant Township Audit, 22 Dist. 779, 2 West. 95, (1912), (President of board of supervisors cannot on his own initiate appeal from auditors report). Unlike the situation where you as a township supervisor must defend your official action, you individually will be the originator of this matter against the township. The Second Class Township Code provides no provision and sets forth no authorization for a township supervisor to secure legal representation at the township's expense in order to prosecute a private action against the township. Thus, such would be a financial gain other than the compensation provided by law. Indeed, if we were to now rule that such was permissible, any township supervisor could, at Joseph J. Szymanowski Page 4 the township's expense, initiate any type of legal action against the township including personal injury lawsuits and the assertion of any other legal action that might individually accrue to the official. See, Baughman v. Hempfield Township, 159 Pa. supra 178, 48 A.2d 41, (1946); Festa v. Derry Township, 49 Pa. Commw. Ct. 297, 411 A.2d 904, (1980). 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. 65 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, it 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 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. IV. Conclusion: Within the purview of the State Ethics Act, a township supervisor may not utilize the township solicitor or otherwise have the township disburse funds for legal representation on his behalf in an action that he is personally initiating against the township auditors to contest the fixing of his salary. Such would be the utilization of his township position to secure a financial gain other than the compensation that has been provided for him as a township supervisor /roadmaster. While there may be an appropriate remedy for the provision of such legal fees through the court to which such action is taken, we do not believe that the township supervisor may individually utilize township resources in pursuit of a personal and individual legal action. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Joseph J. Szymanowski Page 5 Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. By the Commission, Arc", Rcvwcfrol,.,t7 G. Sieber Pancoast Chairman