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HomeMy WebLinkAbout03-587 PetrucciJoseph J. Carmody, Esquire 225 Wyoming Avenue West Pittston, PA 18643 ADVICE OF COUNSEL September 10, 2003 03 -587 Re: Conflict; Public Official /Employee; Borough Council Member; Subpoenaed Witness; State Ethics Commission Inquiry; Reimbursement By Borough For Legal Fees. Dear Mr. Carmody: This responds to your letter of August 5, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether pursuant to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. 1101 et seq., a borough council member may receive reimbursement from the boroughs for legal fees incurred for appearing as a subpoenaed witness to answer questions in a State Ethics Commission inquiry. Facts: As Solicitor for Exeter Borough ("Borough"), Luzerne County, you seek an advisory from the State Ethics Commission based upon the following submitted facts. You state that on May 1, 2003, Borough Council Member John Petrucci ( "Petrucci ") appeared with his private attorney and pursuant to subpoena to answer questions in a State Ethics Commission inquiry. You ask whether Petrucci's legal fees for appearing as a witness are properly reimbursable by the Borough. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts that the requestor has submitted. In issuing the advisory based upon the facts that the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Borough Council Member, Petrucci is a public official subject to the provisions of the Ethics Act. Carmody /Petrucci, 03 -587 September 10, 2003 Page 2 Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms are defined in the Ethics Act as follows: § 1102. 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. The term 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. 65 Pa.C.S. § 1102. Section 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (j) Voting conflict. - -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 Carmody /Petrucci, 03 -587 September 10, 2003 Page 3 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. 65 Pa.C.S. § 1103(j). In each instance of a conflict, Section 1103(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) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, 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. A pecuniary benefit that is authorized in law is not a "private" pecuniary benefit. Conversely, a pecuniary benefit that is not authorized in law is a "private" pecuniary benefit. Wagner, Order No. 1028 at 12. With regard to your question of whether a borough council member may receive reimbursement from the borough for legal fees incurred in proceedings before the State Ethics Commission, only general guidance may be given under the submitted facts. Although the State Ethics Commission does not have the statutory jurisdiction to interpret laws other than the Ethics Act, it may in certain instances be necessary to review certain provisions of other laws to the extent that those laws impact upon the Ethics Act. The Borough Code, 53 P.S. § 45101 et seq. provides as follows: § 46005. Powers of council The council of the borough shall have power: (9) To pay authorized expenses incurred by elected and appointed borough officers in connection with their duties or other borough business. 53 P.S. § 46005(9). It would appear from the above quoted provision that the Borough Code authorizes borough councils to pay expenses incurred by borough officers so long as such expenses are (1) authorized; and 2 in connection with the duties of council or other borough business. 53 P.S. § 46005(9). However, the State Ethics Commission's jurisdiction is limited to the Ethics Act and only peripherally involves other laws to determine whether a particular pecuniary benefit is not authorized, or "private." Therefore, until an appropriate judicial forum interprets the relevant portions of the Borough Code, it remains unclear as to whether a borough council member may receive reimbursement from the borough for legal fees Carmody /Petrucci, 03 -587 September 10, 2003 Page 4 incurred for appearing as a subpoenaed witness to answer questions in a State Ethics Commission inquiry. Until such judicial determination is made, the necessary conclusion is that to the extent the Borough Code would prohibit a borough council member from receiving reimbursement from the borough for legal fees incurred for appearing as a subpoenaed witness to answer questions in a State Ethics Commission inquiry, the Ethics Act would then also prohibit the receipt of such a private pecuniary benefit. The propriety of the proposed conduct has only been addressed under the Ethics Act; 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 Act. Conclusion: As a Council Member for Exeter Borough ( "Borough "), John Petrucci ( "Petrucci ") is a joublic official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Until an appropriate judicial forum interprets the relevant portions of the Borough Co e, it remains unclear as to whether a borough council member may receive reimbursement from the borough for legal fees incurred for appearing as a subpoenaed witness to answer questions in a State Ethics Commission inquiry. Until such judicial determination is made, the necessary conclusion is that to the extent the Borough Code would prohibit a borough council member from receiving reimbursement from the borough for legal fees incurred for appearing as a subpoenaed witness to answer questions in a State Ethics Commission inquiry, the Ethics Act would then also prohibit the receipt of such a private pecuniary benefit. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an 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, provided 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 formal Opinion will be issued by the Commission. 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. Sincerely, Vincent J. Dopko Chief Counsel