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HomeMy WebLinkAbout92-639John Kent Lewis, Esquire Lewis, Vinci and Partel 890 Beaver Grade Road Coraopolis, PA 15108 -2653 Dear Mr. Lewis: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 2, 1992 92 -639 Re: Conflict, Public Official /Employee, Township Supervisor, Reimbursement of Legal Fees, Criminal Harassment Action. This responds to your letter of September 23, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law would allow a township supervisor to seek reimbursement from the township for legal expenses incurred in defending a criminal harassment action brought by another township supervisor related`' to the questioning of expense reimbursements for attendance at the state convention of township officials. Facts: As Solicitor for Independence Township in Beaver County, Pennsylvania, you request an advisory from the State Ethics Commission on behalf of Mrs. Dee McCoy, a Township Supervisor, regarding the propriety of her seeking reimbursement from the Township for legal expenses which she incurred-in defending a criminal harassment action (summary offense) brought against her by another Township Supervisor. You have provided the following factual background. In April, 1992, Township Supervisor Mrs. Georgette Hineman attended the State Convention of Township Officials in Hershey, Pennsylvania. The Township advanced $90.00 to cover reservation of a motel room for Mrs. Hineman at Simmons' Motel in Hershey, Pennsylvania. When Mrs. Hineman arrived at Simmons' Motel, she reportedly found it unsatisfactory and decided to stay with a friend at another hotel. Subsequently, at municipal meetings, a question arose as to John Kent Lewis, Esquire November 2, 1992 Page 2 whether Mrs. Hineman had been refunded any of the reservation amount. She indicated that she had not. However, a letter was received from the Simmons' Motel owner indicating that $60.00 had, in fact, been refunded. You have submitted a copy of that letter dated April 20, 1992, which is incorporated herein by reference. You state that Mrs. Hineman believed that Mrs. McCoy's questioning regarding the $60.00 refund and the request for an affidavit from Simmons' Motel personnel regarding this matter constituted a form of "political harassment ". You have submitted a copy of the aforesaid Affidavit dated May 13, 1992 as well as portions of transcripts from audiotape of the May 7, 1992 agenda meeting, which documents are incorporated herein by reference. Mrs. Hineman subsequently filed a harassment action against Mrs. McCoy at Magistrate Stephen Mihalic's office, alleging that Mrs. McCoy had attempted to damage her reputation. You have submitted a copy of the Magistrate Complaint, which is incorporated herein by reference. You state that having spoken both publicly and privately with Mrs. McCoy and Mrs. Hineman regarding this matter and pursuant to advice from the Department of Community Affairs and State Solicitor's Association, you advised both parties that you would not be involved as Township Solicitor in this criminal summary proceeding. Mrs. McCoy sought private counsel to defend her in this matter -- Attorney Charles F. Bowers -- who you state charged Mrs. McCoy a fee of $300.00 for his services. You have submitted a document `which you characterize as the attorney billing, which document is incorporated herein by reference. It is noted, however, that the said document appears to be a receipt for a $300.00 retainer rather than a billing for such amount. On July 17, 1992 a hearing was held at which the charges as to Mrs. McCoy were dismissed, Mrs. Hineman being ordered to pay Court costs. You have submitted a copy of a September 11, 1992 judgment letter from Magistrate Mihalic, which document is incorporated herein by reference. You state that Mrs. McCoy believes that this harassment action was brought against. her for good faith actions performed within the scope of her duties as a Township Supervisor -- legitimate questioning regarding the disposition of Township funds. On the other hand, Mrs. Hineman believes that Mrs. McCoy went beyond the scope of her duties as a Supervisor and engaged in willful misconduct in questioning whether in fact Mrs. Hineman had received the $60.00 refund. John Kent Lewis, Esquire November 2, 1992 Page 3 Mrs. McCoy now wishes to be reimbursed by the Township for the legal expenses 4ncurred in defense of the harassment action brought by her fellow Supervisor, Mrs. Hineman. You state that at the most recent Township meeting, you indicated that before any formal vote on whether to reimburse Mrs. McCoy, an advisory opinion should be obtained from the State Ethics Commission on the propriety of such an action. Finally, given that the Independence Township Board of Supervisors is only a three (3) person Board with both Mrs. McCoy and. Mrs. Hineman having underlying interests in the outcome of such vote. -- additional advice is requested as to whether Mrs. Hineman and /or Mrs. McCoy may vote and if one or the other must abstain, if either or both can vote in the case of a tie. Discussion: As a Township Supervisor for Independence Township in Beaver County, Pennsylvania, Mrs. Dee McCoy is a public official as that term is defined under the Ethics Law, and hence she is subject to the provisions of that 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 L as follows: Section 2. Definitions. "Conflict or conflict of interest", by a public official or public , emplpyee -of . the authority of his office or employment ' any confidential information received through his 'holding public off i ce 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 : 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 John Kent Lewis, Esquire November 2, 1992 Page 4 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: "In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. 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 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 John Kent Lewis, Esquire November 2, 1992 Page 5 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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s), then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91 -523- S. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, 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 first question to be determined under Section 3(a) of the Ethics Law is whether the legal representation of Mrs. McCoy by private counsel at Township expense in the criminal harassment action would transgress Section 3(a) of the Ethics Law. Initially, the Commission has determined that the representation b • ; xh e township solicitor or representation paid by township fug44 ,is financial gain to the individual receiving the represen:pitIOn. Szymanowski, Opinion 87 -002. The resolution of this,patterMust turn upon whether such representation relates to.defendinc. the supervisor relative to the proper exercise of : pu649 o.ifice.. or whether the representation relates to an action. by the supervisor relative to official misconduct or conduct that, is personal or private in nature to the supervisor. In Pugliese, Opinion 84-018, the Commission addressed the question as to whether representation_ was proper in a situation where the township supervisors were..surcIargec ,regarding the construction of a sports field an _tt e xepair cf_ various township facilities. The speci ic. nature, of that -si ccharge 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, the Commission determined that the supervisors were entitled John Kent Lewis, Esquire November 2, 1992 Page 6 to representation noting that the legal defense arose out of actions taken by the supervisors in their official. capacity. There was no allegation in that case 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, the Commission in Szvmangwski, supra, 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, the Commission 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. The Commission concluded under those circumstances that the supervisor was not entitled to the legal representation at township expense. (See also, Borland, Order No. 785; Sanders, Order No. 786). Finally, Herlands, Advice 88 -592 concluded that Section 3_(a) of the former Ethics Act, Act 170 of 1978, would not authorize township .supervisors to be represented by the township solicitor or •to receive private representation at township expense in defending a surcharge action instituted by auditors relating to their allegedly improper mileage reimbursements and township paid medical expenses. Decisional law is instructive on the question of whether certain actions of a supervisor are deemed as official acts which would be subject to legal representation or whether those actions are of a private or personal nature which would require private representation that could not be at township expense. In Roofper'fl Appeal, 81 Pa. Super. 482, A.2d (1923), the 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: . .[T]he 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 John Kent Lewis, Esquire November 2, 1992 Page 7 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. 81 Pa. Super. at 484. In this case, the criminal .action filed against Mrs. McCoy was the direct result of her questioning the expenditure of Township funds in allegedly improper reimbursement to another Township Supervisor, Mrs. Hineman. Questioning the expenditure of Township funds would appear to be a proper exercise of Mrs. McCoy's public office, rather than official misconduct, particularly in this case where a letter from the Simmons' Motel asserted that a reimbursement had been made by the Motel directly to Mrs. Hineman. Thus, Section 3(a) of the Ethics Law would not preclude Mrs. McCoy from seeking reimbursement from the Township of her legal expenses incurred in defending the related criminal harassment action brought by Mrs. Hineman. However, Mrs. McCoy would be limited to seeking reimbursement for the actual legal fees incurred, rather than the amount of the retainer. Turning to your second inquiry, which pertains to voting -on whether to reimburse Mrs. McCoy's legal fees, it is clear::that 14rs. McCoy would have a conflict of interest on that, issue beeusd °any reimbursement of her fees would be a private pecuniary:benMfit.Aor her. As would be -the case in any instance of a conflict ,of interest, Mrs. McCoy would be required to abstain.!: €rom any participation of any nature whatsoever in such a matter, and to satisfy the disclosure provisions of Section 3(j) set forth above. However, pursuant to Section 3(j) of the Ethics Law, if Mrs. McCoy abstains and fully satisfies the disclosure provisions as set forth in Section 3(j), and the remaining Supervisors cast opposing votes, then Mrs. McCoy may vote to break the tie vote. It is noted that your inquiry as to whether Mrs. Hineman would have a conflict of interest is a third party request which may not be addressed. 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. John Kent Lewis, Esquire November 2, 1992 Page 8 Conclusion: As a Township Supervisor for Independence Township in Beaver County, Pennsylvania, Mrs. Dee McCoy is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude Mrs. McCoy from seeking reimbursement from the Township of the legal expenses which she incurred in defending a criminal harassment action brought against her by another Township Supervisor related to Mrs. McCoy's questioning of Township expense reimbursements to that other Supervisor. On the issue of such reimbursement, Mrs. McCoy would have a conflict of interest. In each instance of a conflict of interest, Mrs. McCoy would be required to abstain from any participation of any nature whatsoever and to fully satisfy the disclosure provisions of Section 3(j). Following such abstention and disclosures, should the remaining two Supervisors cast opposing votes, Mrs. McCoy may vote to break the tie vote. 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 request that -the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, incent . T. Dopko Chief Counsel