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HomeMy WebLinkAbout97-536 LargeBeth S. Mills, Esquire Dodaro, Kennedy & Cambest Southpointe Plaza I Suite 440 400 Southpointe Boulevard Canonsburg, PA 15317 -8539 Re: Conflict, Public Official /Employee, Township, Supervisor, Quo Warranto Complaint, Legal Representation paid by Township. Dear Ms. Mills: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 6, 1997 97 -536 This responds to your letters of January 17, 1997, February 27, 1997, and March 5, 1997 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Township Supervisor with regard to having the Township Solicitor represent him at Township expense in defending a quo warranto action that is based upon his prior conviction under Section 9(e) of the Ethics Act, Act 170 of 1978 (a statutory felony) on four counts of swearing falsely under oath before officers of the Pennsylvania State Ethics Commission. Facts: As Solicitor for the Township of Forward, you seek an advisory on behalf of Mr. James Large (Large), a Supervisor who took office in January, 1996. Large has been served with a Quo Warranto Complaint filed by the Attorney General's Office. You have submitted a copy of the Complaint in Quo Warranto and a memorandum detailing the facts of this matter, both of which documents are incorporated herein by reference. The Complaint requests ouster under Article 2, §7 of the Pennsylvania Constitution which provides: §7. Ineligibility by criminal convictions No person hereafter convicted of embezzlement of public moneys, bribery, perjury or other infamous crime, shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Commonwealth. Mills /Larne, 97 -536 March 6, 1997 Page 2 On November 18, 1986, Large was convicted under Section 9(e) of the Ethics Act, Act 170 of 1978 (a statutory felony) on four counts of swearing falsely under oath before officers of the Pennsylvania State Ethics Commission. Large was sentenced on February 3, 1987 to imprisonment of not less than one year nor more than two years. Large did in fact serve one year in prison and was released on probation. Subsequently, in November, 1995, Large was elected to the office of Township Supervisor. You state that the issue of Large's imprisonment and the charges against him were widely known throughout the Township. In fact, several signs were placed throughout the Township with the saying, "No Jail Bird." You pose the following specific questions: 1. Whether your law firm may represent Large; and 2. Whether Large's defense costs are to be paid by the Township. You state your opinion that as Solicitor you may represent Large in the Quo Warranto action at Township expense. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. To the extent Large is a Supervisor for the Township of Forward, he is a public official 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 as follows: 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 Mills /Larae, 97 -536 March 6, 1997 Page 3 "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 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. "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(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest, as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In applying the above provisions of the Ethics Law to your inquiry, the first question which you have posed as to whether your law firm may represent Large does not fall within the parameters of the Ethics Law and so may not be addressed herein. It is suggested that you consult the Rules of Professional Conduct on that question. MillslLarge, 97 -536 March 6, 1997 Page 4 Your second question, as to whether Large's defense costs are to be paid by the Township, can and shall be addressed insofar as Large's conduct is in question. In analyzing the question, there is no need to address the merits of the quo warranto action, which of course can only be decided by a Court. Pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited 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. The issue of whether a public official may use the authority of his public position to secure or accept legal representation at the expense of the governmental body is a very complex issue which hinges upon the nature of the conduct which is in question. In Roofner's Appeal 81 Pa.Super. 482 (1923), the Superior Court stated that a township supervisor is not entitled to township paid legal representation for his actions which are of a private rather than public nature. In that case, township supervisors had used township funds for legal representation when they were charged with unlawfully neglecting and refusing to keep a particular township road safe for travel. Silver v. Downs, 493 Pa. 50, 425 A.2d 359 (1981) involved the defense of two township supervisors in a recall action which involved official acts as to the handling of township accounts and spending and which did not involve accusations of personal wrongdoing. The Supreme Court noted that township supervisors are statutorily entitled to publicly provided legal counsel to defend their official actions under such circumstances. ILL 493 Pa. at _, 425 A.2d at 363 (citing 53 P.S. §65582). In In Re. Birmingham Township Delaware County, 142 Pa. Commw. 317, 597 A.2d 253 (1991), the Commonwealth Court applied Silver v Downs, supra, and held that a supervisor is entitled to a public defense in a recall action where there is no substantial supporting evidence for allegations of criminal conduct, but is up/ entitled to a public defense where it is determined that the official did commit criminal conduct which results in removal from office. In Stork v. Sommers, 158 Pa. Commw. Ct. 65, 630 A.2d 984 (1993), the Commonwealth Court held that a city treasurer was entitled to a public defense when he acted in his official capacity to refuse to sign certain checks related to a fund which the treasurer believed had been subject to fraudulent abuses by the city mayor. In R.H. v. SEC, 677 A.2d 1004 (1996), Commonwealth Court affirmed this Commission's determination that it is a violation of the Ethics Law for a township supervisor to use township paid legal representation to challenge the wages set for him as a township employee. The Court stated: However, we must agree with the SEC that the benefits Petitioners sought through the suit against the Township Auditors were personal to the Petitioners and not necessary for the general conduct of business of the Township. Therefore, the value of the legal representation Petitioners JVlills /Large, 97 - 536 March 6, 1997 Page 5 received from the Township Solicitor was financial gain other than compensation provided by law, in violation of the 1978 Act. jj at (Emphasis added). In reviewing the above precedents, at least one conclusion can be reached: a public official is entitled to publicly paid legal representation as to official conduct that is not criminal in nature, but he is not entitled to such representation in actions involving conduct which is personal in nature. Regardless of the outcome of the case on the merits, of the quo warranto action, it is clear that Large's conduct in seeking and accepting public office despite his convictions was not official conduct, but rather was conduct that was personal in nature. Such actions were not "official" because they occurred before Large was a public official. Furthermore, issues as to Large's ineligibility to even hold public office in light of his prior convictions are personal in nature and are not necessary for the general conduct of business of the Township. Consequently, pursuant to Section 3(a) of the Ethics Law, Large may Eat secure or accept Township paid legal representation for his defense in the quo warranto action against him. 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: To the extent Mr. James Large (Large) is a Supervisor for the Township of Forward, he is a public official subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, Large may not secure or accept Township paid legal representation for his defense in the quo warranto action against him because Large's conduct in seeking office despite his prior convictions under Section 9(e) of the Ethics Law occurred before he took office and was not official conduct, but rather was conduct of a personal nature and not necessary for the general conduct of business of the Township. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a forma/ Opinion will be issued by the Commission. Mills /Large, 97 -536 March 6, 1997 Page 6 Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. �ncerely, t:_c),,b _t ''' Vincent J. opko Chief Counsel