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HomeMy WebLinkAbout90-019 YoungMr. Edward S. Young McClain & Young 909 Eighth Avenue P.O. Box 19 Beaver Falls, 15010 1. PURPOSE STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley DATE DECIDED: December 7, 1990 DATE MAILED: December 7, 1990 90 -019 Re: Conflict, School Director, Representation, Legal Assistance, Sunshine Law. Dear Mr. Young: This Opinion is issued in response to your letter of request dated September 7, 1990. I. Issue: Whether under the Public Official and Employee Ethics Law school directors may adopt a policy which authorizes legal assistance at the expense of the school district to school directors who are charged with summary offenses under the Sunshine Law. II. Factual Basis for Determination: As Solicitor for the Blackhawk School District (District) in Beaver County, you inquire as to the propriety of the adoption a policy by the District which would provide legal assistance to school directors who would be charged with summary offenses under the Sunshine Law. You ask whether the adoption and implementation of such a policy would transgress the Ethics Law. A copy of the proposed policy has been supplied which provides as follows: The Blackhawk School Board recognizes that School Board members give of their time and energies without compensation while exposing themselves to charges, the defense of which could result in substantial personal financial cost. Accordingly, Mr. Edward S. Young 2 the Blackhawk School Board wishes to provide legal assistance for School Board members who are charged with a violation of the Sunshine Law (Act 84 of 1986) and who are acquitted of such charge. 2. LEGAL ASSISTANCE When any school board member of the Blackhawk School District is charged with a summary offense under Act 84 of 1986 (the Sunshine Law), the Blackhawk School District may, upon the written request of the board member, defend the board member against the charge. If the Blackhawk School District has refused a written request to defend the board member and the board is acquitted of the charge, the Blackhawk School District shall reimburse the board member for the expenses of his legal defense. III. Discussion: School directors of Blackhawk School District are public officials as defined under the Public Official and Employee_ Ethics Law, Act 9 of 1989. Therefore, they are subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law: Section 2. 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. "Conflict" or "conflict of interest" 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 Mr. Edward S. Young Page 3 consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. The question to be determined under Section 3(a) of the Ethics Law is whether legal representation of a school director paid by the District relative to a charge of a Sunshine Law violation contravenes the Ethics Law. In particular, we must consider whether such action under Section 3(a) constit]]Y.21H]O of authority of office and results in a private pecuniary benefit. Assuming that such a policy is adopted, the action by a school director in voting for the policy adoption as well as requesting representation pursuant to such a policy is a use of authority of office because it is the exercise of the power by an individual who is in the position of school director vis -a -vis the action that he took as a school director which may have implicated the Sunshine Law. See Cappabianca, Opinion 89 -014 -R wherein we held that the act by a legislator of selecting a district office was a "use of authority of office" in that the decision was made by the state representative solely in his capacity as a legislator. Under Act 170 of 1978, we have determined that the representation by the township solicitor or representation paid by township funds is financial gain to the individual receiving the representation. Szymanowski, Opinion 87 -002. Similarly, under Act 9 of 1989, such would be a pecuniary benefit; however, we must determine whether said benefit is a private one. In determining whether such representation constitutes a private pecuniary benefit, we have guidance both from our prior decisions and judicial precedent. We have addressed the general issue of legal representation in two opinions: Pualiese, Opinion 84 -018 and Szymanowski, supra. Mr. Edward S. Young Page 4 In Pugliese, supra, we considered the question as to whether representation was proper in a situation where the township supervisors were surcharged regarding the construction of a sports field and the repair of various township facilities. The specific nature of that surcharge related to excessive costs in completing the projects over original estimates; it was argued that the excess costs might have been avoided if the project was advertised and competitive bids were sought. In that case, we determined that the supervisors were entitled to representation noting that the legal defense arose out of actions taken by the supervisors in their official capacity. There was no allegation that the supervisors had taken any official action which would enure to their personal or private benefit; the sole basis of that surcharge action was whether the supervisors acted improvidently by not advertising the projects for competitive bids. Contrariwise, in Szvmanowski, supra, we determined that a township supervisor could not obtain legal representation at township expense concerning a suit instituted by him against the township regarding the fixing of his salary. In the latter opinion, we opined that the suit did not arise out of any official action on the part of the supervisor but was rather a personal action by him regarding the fixing of his salary which had no authorization in the Second Class Township Code. We concluded under those circumstances that the supervisor was not entitled to the legal representation at township expense. Under decisional law, the test as to whether a governmental body may pay for the legal representation of a member of that body turns upon whether the conduct of that member is considered as an official act for which the governmental body would pay for the legal representation or whether the action is private or personal in nature which would require private representation that could not be at governmental expense. In Roofner's Appeal, 81 Pa. Super 482, 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 Mr. Edward S. Young Page 5 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: Dillon 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 accord is In Re: Appeal from the 1987 Auditor's Report of North Huntingdon Township, filed on June 1, 1989 in the Court of Common Pleas of Westmoreland County at No. 11 Civil Docket, 1988, wherein the Court directed the auditor to surcharge a township commissioner for legal expenses which were paid by the township in representing the commissioner against charges before this Commission regarding excess reimbursement received by the township commissioner for attending various township conventions or conferences. However, in Silver v. Davis, 493 Pa. 50, 425 A.2d 359 (1981), the Pennsylvania Supreme Court allowed the representation by a solicitor in a recall action against two members of the board of supervisors. The Court reasoned that because the recall petition related to how the supervisors handled township accounts and made expenditures of township funds, such acts were considered to have been in furtherance of official duties and therefore entitled to township paid legal representation. The Court specifically noted that there were no allegations that the supervisors had personally benefited or received township funds to which they would not be entitled. In attempting to apply the above precedent and analysis to the instant matter, we are confronted with construing an imprecise policy Mr. Edward S. Young Page 6 statement of the District. In particular, the purpose clause recites an intent to provide paid legal representation for school directors who are charged and subsequently acquitted. However, the policy clause merely delineates that the District may pay for representation upon written request regardless of the outcome of the action. The second sentence of that clause deals with the situation where a school director would initially pay for his legal representation but could be reimbursed if acquitted of the charge. We suggest that consideration be given to redrafting the proposed policy statement to clear up the ambiguities noted above. Since the policy statement in our view also lacks specificity as well as being inexact, to the point of being possibly contradictory, our response must necessarily be general in nature to the question posed. It is our view that those actions of a school director which are official in nature, that is, relate to actions by the individual in the capacity of a school director and which are devoid of any private pecuniary benefit to the school director could be paid by the District for the legal representation of that school director relative to a charge of a Sunshine Act violation. We believe that our response recognizes the balancing of concerns between the right of a public official /employee to paid legal representation arising out of official action on his part versus the obligation that a public official /employee bear the cost of his legal representation involving matters relating to personal financial gain. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. IV. Conclusion: A school director is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law does not prohibit a school director from receiving legal representation paid by the school district as to a charge of the Sunshine Law violation provided the action in question was official in nature and provided the action was devoid of any private pecuniary benefit. Lastly, the propriety of such conduct has only been addressed under the Ethics Law. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as. stated in the request. This letter is a public record and will be made available as such. Mr. Edward S. Young Page 7 Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By th Commission, Robert W. Brown, Vice Chair