HomeMy WebLinkAbout03-012 ScottOPINION OF THE COMMISSION
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Daneen E. Reese
Frank M. Brown
Donald M. McCurdy
Michael J. Healey
Paul M. Henry
DATE DECIDED: 12/2/03
DATE MAILED: 12/15/03
03 -012
Alan S. Miller, Esquire
Berks County Solicitor
Berks County Servic @s Center
633 Court Street, 13 Floor
Reading, PA 19601 -3584
Re: Conflict; Public Official /Employee; Commissioner; County; State Ethics Commission;
Proceeding; Legal Fees; Reimbursement; Vote; Another County Official.
Dear Mr. Miller:
This Opinion is issued in response to your faxed advisory request of October 1, 2003.
I. ISSUE:
Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101
et seq., presents any prohibition or restrictions upon a county commissioner as to voting to
reimburse with county funds another county official's legal fees incurred in a proceeding
before the State Ethics Commission against such county official, when the commissioner may
subsequently seek reimbursement of his legal fees as to a separate unrelated State Ethics
Commission proceeding against him.
II. FACTUAL BASIS FOR DETERMINATION:
On behalf of Commissioner Mark C. Scott (Scott), you request an advisory concerning
the legal implications under the Ethics Act if Scott votes to reimburse with county funds
another county official's (county controller) legal fees incurred as a result of an action brought
by this Commission against that county official. You pose the question because Scott may
later seek reimbursement of his legal fees incurred in a separate unrelated proceeding of this
Commission against him.
By letter dated October 31, 2003, you were notified of the date, time and location of the
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public meeting at which your request would be considered.
III. 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
which the requestor has submitted. In issuing the advisory based upon the facts which the
requestor has submitted, this 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 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.
Pursuant to Section 3(a)/1103(a) of the Ethics Act, a public official /public employee is
prohibited from engaging in conduct that constitutes a conflict of interest.
The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows:
Section 2/1102. 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
f
of 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 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.
65 P.S. § 402/65 Pa.C.S. § 1102.
Section 3(a)/1103(a) of the Ethics Act prohibits a public official /public employee 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.
Section 3/1103. Restricted activities
(b) No person shall offer or give to a public official,
public employee or nominee or candidate for public office or a
member of his immediate family or a business with which he is
associated, anything of monetary value, including a gift, loan,
political contribution, reward or promise of future employment
based on the offeror's or donor's understanding that the vote,
official action or judgment of the public official or public employee
or nominee or candidate for public office would be influenced
thereby.
65 P.S. § 403(b)/65 Pa.C.S. § 1103(b).
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Page 3
Section 3(b)/1103(b) of the Ethics Act provides in part that no person shall offer to a
public official /employee anything of monetary value based upon the understanding that the
vote, official action, or judgment of the public official /employee would be influenced thereby.
Section 3/1103. Restricted activities
(c) No public official, public employee or nominee or
candidate for public office shall solicit or accept, anything of
monetary value, including a gift, loan, political contribution,
reward, or promise of future employment based on any
understanding of that public official, public employee or nominee
that the vote, official action, or judgment of the public official or
public employee or nominee or candidate for public office would
be influenced thereby.
65 P.S. § 403(c)/65 Pa.C.S. § 1103(c).
Section 3(c)/1103(c) of the Ethics Act quoted above provides in part that a public
official /public employee shall not solicit or accept anything of monetary value based upon any
understanding that his vote, official action or judgment would be influenced thereby.
Reference is made to these two 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.
Having noted the above provisions of the Ethics Act, we must now consider the
elements necessary to establish a conflict under Section 1103(a). In Confidential Opinion, 01-
005, we noted:
Pursuant to Section 1102 of the Ethics Act, the elements of a conflict of
interest are the use of 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, a member of his immediate
family, or a business with which he or a member of his immediate family is
associated. In order for a conflict of interest to be found under Section 1103(a)
of the Ethics Act, each of these essential elements must exist.
Id. at 7.
We further stated in Shimek, Opinion 01 -002:
If any element is missing under the submitted facts, this Commission is
compelled to find that a conflict of interest would not exist under the Ethics Act.
There is no basis in the current Ethics Act for finding an appearance of
impropriety or a conflict based upon anything but the statutory elements.
Id. at 4.
The question of whether a public official has a conflict under Section 1103(a) of the
Ethics Act when that public official receives publicly paid legal representation depends upon
whether there is a use of authority of office for a private pecuniary benefit. To the extent the
public official, through a use of authority of office, receives governmentally paid legal
representation such that there are no out of pocket expenses, that public official receives a
pecuniary benefit. Such pecuniary benefit is a private pecuniary benefit where the public
official is not entitled to publicly paid representation. Accordingly, a determination as to
whether there is a private pecuniary benefit through a use of authority of office by a public
official and a conflict of interest depends upon the unique facts in each case. Various court
decisions have addressed the issue of whether a public official is entitled to legal
representation at government expense.
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In Roofner's Appeal, 81 Pa. Super. 482 (1923), 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. Noting that the supervisors were charged with official misconduct or neglect and
refusal to perform their legal duties, the Court held that they were not entitled to representation
at township expense:
[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 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.
Id., 81 Pa. Super. at 484 485.
In Silver v. Downs, 493 Pa. 50, 425 A.2d 359 (1981), the Pennsylvania Supreme
Court allowed representation by a solicitor in a recall action against two members of the boards
of supervisors. However, that case related to the official activities of township supervisors in
handling township accounts, as to which allegations there was a statutory right to publicly
provided legal counsel. Furthermore, the case specifically did not involve charges of criminal
misconduct.
In Re Birmingham Township, Delaware County, 142 Pa. Commw. 317, 597 A.2d 253
(1991) 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 not entitled to a
public defense where it is determined that the official did commit criminal conduct which results
in removal from office.
Stork v. Summers, 158 Pa. Commw. 65, 630 A.2d 984 (1993) 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. State Ethics Commission, 673 A.2d 1004 (Pa. Commw. 1996),
Commonwealth Court affirmed this Commission's decision that certain Township Supervisors
violated Section 3(a) of Act 170 of 1978 when they used the Township Solicitor, at taxpayer
expense, to represent them in a suit which they brought to challenge the auditor's decision to
decrease their annual labor wage for their working positions. Although the Petitioners argued
that their appeal was not private in nature but was within their duties as Township Supervisors,
the Court disagreed stating:
Section 516 of the Code, 53 P.S. §65516, which provides that supervisors'
duties include hiring such p ersons as may be necessary for the general
conduct of the business of township, allows supervisors to retain the
township solicitor to represent the township. However, we must agree with the
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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 received from the Township Solicitor was financial
gain other than compensation provide by law, in violation of the 1978 Act.
Id., 673 A.2d at 1011 (Emphasis added).
Finally, in In Re: Appeal from the 1987 Auditor's Report of North Huntingdon
Township, No. 11 Civil 1988 (Westmoreland Cty. C.P. June 1, 1989), the Common Pleas
Court held that a township commissioner was not entitled to publicly funded legal
representation in defending himself before the State Ethics Commission as to allegations that
he had received excess reimbursement from the Township for expenses incurred in attending
conferences and conventions. The Court stated, inter alia:
However, in this situation, it would appear that the alleged receipt of excess
reimbursement might be classified as conduct rising to the level of official
misconduct. Certainly, the receipt by Hagan of money to which he was not
entitled constitutes conduct personal in nature. Therefore, Hagan could not and
should not have been represented by the Township solicitor or private counsel
at Township expense.
Id., at 6 -9.
Nothing contained in the allegations, findings or final order of the
Commission can be construed to come under the umbrella of official duties.
Hagan received money he was not entitled to. Such conduct is clearly personal
in nature.
The Township has also argued that Hagan is entitled to payment of his legal
expenses because he was successful in his defense of the charges made
against him in the Commission proceedings. The basis for this argument is a
Township ordinance that provides for reimbursement of legal expenses to a
commissioner who is successful on the merits in his defense of charges made
against him. This argument is based on the fact that the order of March, 1987,
concerned more serious allegations and findings against Hagan than the final
order of June, 1988.... While it is true that the outcome in June, 1988, was
less serious to Hagan than it appeared it would have been in March, 1987, the
Court would nevertheless be hard pressed to conclude that Hagan was
successful on the merits in his defense. The Commission found wrongdoing,
and Hagan repaid the money previously retained by him to which he was not
entitled. Such a disposition does not constitute a successful defense on the
merits. Furthermore, the courts have held that whether or not a public official is
entitled to publicly funded representation does not turn on whether he has been
successful on the merits in his defense. Rather, it turns on whether the
charges concern performance of official duties or concern conduct personal in
nature. Therefore, under the conclusions reached earlier in this Opinion, the
Township's argument on this basis must fail.
We glean from the above case law that the payment of legal fees for representation of a
public official in a matter before this Commission turns upon whether the action was personal
in nature as opposed to official duties. That will, by its very nature, be decided on a case by
case basis. In this regard, we construe that the proposed action in this case solely relates to
the question of the reimbursement of legal fees of the county controller. We therefore
concomitantly assume that the contemplated action is not for a broad based policy that would
set general parameters for county paid legal representation. Such an action, if contrary to the
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principles espoused in the above case law, would be legally questionable. In any event, such
a broad based policy would be a conflict as to Scott's participation since it would impact upon
his own claim for county reimbursement of legal fees, assuming he would subsequently make
such a claim. Therefore, our analysis in this opinion is predicated upon the assumption that
Scott's participation as to the county controller's claim for reimbursement of legal fees is limited
to that narrow issue and not a broad based policy as to county paid legal representation in
general.
With the above background on governmentally paid legal representation, we shall now
address the question posed which is actually comprised of two distinct issues: (1) whether,
under the Ethics Act, Scott may take official action as to a claim by the county controller for
reimbursement with county funds of legal fees incurred in connection with a commission
proceeding involving the county controller; and (2) whether, under the Ethics Act, Scott may
take official action as to the county controller's reimbursement claim when Scott, may at some
future time, seek reimbursement with county funds of his own legal fees incurred in
connection with a separate unrelated Commission proceeding involving himself.
As to the first issue, Scott's vote and participation would be uses of authority of office.
However, conditioned upon the assumption that the county controller is not a member of
Scott's immediate family, Scott would not be prohibited under Section 1103(a) of the Ethics
Act from taking action as to the county controller's claim for reimbursement since such action
would not result in a private pecuniary benefit to himself or to an immediate family member.
With respect to the second issue, Section 1103(a) of the Ethics Act would not preclude
Scott from taking action as to the county controller's claim for reimbursement given that the
county controller's claim for legal expense reimbursement has no materiality or relevance to
Scott's own potential reimbursement claim. The fact that Scott may subsequently claim
reimbursement of his own legal fees would not form the basis of a conflict of interest as to the
county controller's claim. Hence, Section 1103(a) does not prohibit Scott from participating in
the matter involving the claim by another county official for the reimbursement of legal fees.
No further analysis is necessary in that Scott has not posed a question about the
propriety of his own possible claim for reimbursement of legal fees as to the proceedings
involving himself before this Commission.
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.
IV. CONCLUSION:
A county commissioner is a public official subject to the provisions of the Public Official
and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. A county commissioner may vote to
reimburse with county funds another county official's legal fees incurred in a proceeding
before the State Ethics Commission against such county official, when the commissioner may
subsequently seek reimbursement of his legal fees as to a separate unrelated State Ethics
Commission proceeding against himself, provided the action only relates to the narrow
question of the reimbursement of legal fees for that particular county official and not a broad
based policy as to reimbursement of legal fees generally for county personnel.
The propriety of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(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.
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Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the mailing
date of this Opinion. The party requesting reconsideration must include a detailed explanation
of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §
21.29(b).
By the Commission,
Louis W. Fryman
Chair