HomeMy WebLinkAbout05-503 RobertsRichard J. Roberts, Jr., Esquire
Leavens & Roberts, LLP
29 East Independence Street
P. O. Box 518
Shamokin, PA 17872 -0518
Dear Mr. Roberts:
ADVICE OF COUNSEL
January 14, 2005
05 -503
Re: Conflict; Public Official; School Director; Criminal Complaint; Sunshine Law;
Dismissal of Charges; Reimbursement of Legal Expenses; Official Conduct;
Vote.
This responds to your letter of December 28, 2004, by which you requested
advice from the State Ethics Commission.
Issue: Whether, pursuant to Sections 1103(a) and 1103(j) of the Public Official
and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., five school directors
would be permitted to receive reimbursement from the school district for legal expenses
incurred in defending criminal proceedings initiated against them under the Sunshine
Law, and to vote to approve such reimbursement, when: (1) the conduct in question
was official conduct; and (2) none of the school directors was found to have engaged in
criminal conduct.
Facts: You seek an advisory from the State Ethics Commission on behalf of the
following members of the Board of School Directors ("Board ") of the Line Mountain
School District ( "School District "): Troy Laudenslager, Brent Harner, Penny Balavage,
Charles Sample, and Karen Roach (collectively referred to herein as the "School
Directors "). You have submitted facts that may be fairly summarized as follows.
Private criminal complaints were filed against the above named School Directors,
alleging that they participated in executive sessions in violation of the Sunshine Law.
The cases were consolidated for hearing. Following hearing, the charges against all of
the defendant School Directors were dismissed by the presiding District Justice. The
District Justice's decision was upheld on appeal to the Court of Common Pleas.
You state that because none of the School Directors was found to have engaged
in criminal conduct and the conduct in question was official conduct, it would appear
that the School Directors might be entitled to reimbursement for their legal expenses
from the School District. You note, however, that the School Board would be unable to
Roberts, 05 -503
January 14, 2005
Page 2
take action on the matter of reimbursement if the five School Directors, who together
constitute a quorum, would be required to abstain from voting due to a conflict of
interest under the Ethics Act.
Based upon the above, you ask whether, pursuant to the Ethics Act, the School
Directors would be permitted to: (1) receive reimbursement from the School District for
their legal expenses in the aforesaid matters; and (2) participate in the vote to approve
such reimbursement.
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.
Each of the five School Directors on whose behalf you have inquired is a public
official as that term is defined in the Ethics Act, and hence each of the School Directors
is subject to the provisions of the Ethics Act.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted Activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
(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
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(a), (j).
Roberts, 05 -503
January 14, 2005
Page 3
The following terms pertaining to conflicts of interest under the Ethics Act are
defined 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.
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. The use of
authority of office is more than the mere mechanics of voting and encompasses all of
the tasks needed to perform the functions of a given position. See, Juliante, Order 809.
Subject to certain voting conflict exceptions, in each instance of a conflict,
Section 1103(j) requires the public official /public employee to abstain completely 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. The
exception for breaking a tie vote despite a conflict is available exclusively to members of
three - member governing bodies who first abstain and disclose their conflicts as required
by Section 1103(j) of the Ethics Act. See, Pavlovic, Opinion 02 -005. The other
exception is not limited to three - member boards but requires that the following
conditions be met: (1) the board must be unable to take any action on the matter before
it because the number of members required to abstain from voting under the provisions
of the Ethics Act makes the majority or other legally required vote of approval
unattainable; and (2) prior to voting, such members with conflicts under the Ethics Act
must disclose their conflicts as required by Section 1103(j). Id. The Commission has
cautioned that when applicable, the voting conflicts exceptions would allow for voting
only, and would not permit other forms of participation. See, Whitlock, Opinion 04 -015.
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 in question. If the
public official secures - or even accepts - publicly paid legal representation to which he
is not entitled, he may be found in violation of Section 1103(a) of the Ethics Act.
Various court cases have addressed the issue of whether and when a public official is
entitled to legal representation at taxpayer expense.
Roberts, 05 -503
January 14, 2005
Page 4
In Roofner's Appeal, 81 Pa. Super. 482 (1923), the Pennsylvania Superior Court
stated that a township supervisor is not entitled to township paid legal representation for
his actions that are of a private rather than public nature. 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 that 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.
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. 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 did not involve accusations of
personal wrongdoing.
Matter of Auditor's Report of McKean Township for 1984, 531 A.2d 879 (Pa.
Cmwlth. 1987) involved a court's award of counsel fees in a surcharge action where the
supervisors had been ordered by the Court to retain private counsel for their defense.
In In Re Birmingham Township, Delaware County, 597 A.2d 253 (Pa. Cmwlth.
1991) the Commonwealth Court of Pennsylvania held that a supervisor is entitled to a
public defense in a recall action when there is no substantial supporting evidence for
allegations of criminal conduct, but is not entitled to a public defense when it is
determined that the official did commit criminal conduct that results in removal from
office. The Commonwealth hurt stated:
The Supreme Court in Silver v. Downs established the rule that in a
recall action, those officials facing a possible recall ordinarily have the
right to a defense paid out of township funds. The Supreme Court
implicitly stated however, that when the conduct alleged was of a criminal
nature, the defense should not be available. The two main concerns
addressed by the Supreme Court were that township officials should not
be forced out of office in order to avoid the substantial legal costs of
defending their official actions but also that the local government should
not pay for the defense of an official who committed an act of criminal
Roberts, 05 -503
January 14, 2005
Page 5
misconduct while in office. See Silver v. Downs, 493 Pa. at 55 -57, 425
A.2d at 362 -364.
Addressing these concerns, we believe the Supreme Court in Silver
v. Downs envisioned a procedure where if the local government votes to
provide a defense in a recall action, that decision can be challenged by
the electors at a hearing held to determine if substantial evidence exists
that the official in question committed an act of criminal misconduct, fraud,
embezzlement or other criminal conduct found in Silver v. Downs to be of
the type which could not be taken in any official capacity. If substantial
evidence is found to exist to support the allegation of criminal conduct, the
public official should be denied a public defense.
In Re: Birmingham Township, supra, 597 A.2d at 257 (Note omitted). The Court further
noted:
to insure that a public official receives legal representation in
defending his or her official actions, we believe that if the official is denied
a public defense and it is later judicially determined that substantial
evidence did not in fact exist to support the allegation, the official is
entitled to reimbursement from the local government for attorney fees and
costs expended in defending that allegation. Conversely, to foreclose the
possibility that the local government would have to pay for the defense of
a public official's criminal conduct, we believe that if the official is provided
with a public defense and it is later judicially determined that the official did
in fact commit the criminal conduct resulting in his or her removal from
office, the local government is entitled to recover the attorney fees and
costs of defending that particular allegation.
Id., 597 A.2d at 258 (Note omitted).
In Stork v. Summers, 630 A.2d 984 (Pa. Cmwlth. 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 that 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. Cmwlth. 1996),
Commonwealth Court affirmed the State Ethics 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 that 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 did not agree. The Court
stated:
Section 516 of the Code, 53 P.S. §65516, which provides that
supervisors' duties include hiring such persons as may be necessary for
the general conduct of the business of the township, allows supervisors to
retain the township solicitor to represent the township. 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 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).
Roberts, 05 -503
January 14, 2005
Page 6
Finally, in In Re: Appeal from the 1987 Auditor's Report of North Huntingdon
Townshi , No. 11 Civil 1988 (Westmoreland Cty. C.P. June 1, 1989), the Common
Pleas ourt 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.
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 hardpressed 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.
Id., at 6 -9. The Court directed the Auditor to correct his report, surcharging
6 mmissioner Hagan for the expenditures that had been made for his legal defense
before the State Ethics Commission.
Having set forth all of the above precedents, some conclusions can be reached.
A public official who is found to have engaged in criminal conduct is not entitled to a
public defense. Otherwise, a public official is entitled to publicly paid legal
representation as to official conduct but not as to conduct that is personal in nature.
In the instant matter, based upon the particular facts that you have submitted,
which reflect that the five School Directors' conduct was official conduct and that not
one of them was found to have engaged in criminal conduct, and conditioned upon the
assumption that all legal criteria for receiving such reimbursements have therefore been
satisfied, the School Directors would not be prohibited by Section 1103(a) of the Ethics
Act from receiving reimbursement from the School District for their legal expenses as to
the aforesaid dismissed charges and voting to approve same.
Roberts, 05 -503
January 14, 2005
Page 7
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. Specifically not addressed herein is the applicability of
the Public School Code of 1949, as amended.
Conclusion: As members of the Board of School Directors ( "Board ") of the Line
Mountain School District ( "School District "), Troy Laudenslager, Brent Harner, Penny
Balavage, Charles Sample, and Karen Roach (collectively referred to herein as the
"School Directors ") are public officials subject to the provisions of the Public Official and
Employee Ethics Act (`Ethics Act "), 65 Pa.C.S. § 1101 et seq. With regard to the
question of whether, pursuant to Sections 1103(a) and 1103(j) of the Ethics Act, the five
School Directors would be permitted to receive reimbursement from the School District
for legal expenses incurred in defending criminal proceedings initiated against them
under the Sunshine Law, and to vote to approve such reimbursement, you are advised
as follows. Based upon the particular facts that you have submitted, which reflect that
the five School Directors' conduct was official conduct and that not one of them was
found to have engaged in criminal conduct, and conditioned upon the assumption that
all legal criteria for receiving such reimbursements have therefore been satisfied, the
School Directors would not be prohibited by Section 1103(a) of the Ethics Act from
receiving reimbursement from the School District for their legal expenses as to the
aforesaid dismissed charges and voting to approve same. 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