You'll recall that the city solicitor had issued a legal opinion suggesting the four had a conflict of interest and that they risked forfeiting office if they even discussed authorizing payment of the bill, let alone voted on it.
Attorney Marvin Fein -- who served in the city solicitor's office under Mayor Caliguiri -- has provided Council President Doug Shields and the rest of council with a sharply different analysis.
Fein's bottom line:
"Based on forty-five years experience as a lawyer including twelve years as a law professor and eight years as a member of the City Solicitor's office and research on all of those issues, I have concluded that all of those conclusions are erroneous."
Click "Read More" to see the full text of Fein's opinion to council.
MARVIN A. FEIN
June 9, 2008
President and Members of City Council
City of Pittsburgh
5th Floor, City-County Bldg.
Pittsburgh, PA 15219
Re: Bill 308-Legal Opinion
Dear Council President Shields and Members of City Council:
I have reviewed the Memorandum dated May 12, 2008 from City Solicitor George R. Spector to Council Members Patrick Dowd and Jim Motznick regarding Request for Ethics Opinion Regarding Conflict of Interest. In that memorandum, the City Solicitor opined that four members of Council had a conflict by discussing or voting on Bill 308, that Council could not authorize payment under Bill 308 because it had never previously authorized the action upon which payment was based, and that the four Council members would forfeit their office if they voted on Bill 308. Based on forty-five years experience as a lawyer including twelve years as a law professor and eight years as a member of the City Solicitor's office and research on all of those issues, I have concluded that all of those conclusions are erroneous.
I. A member of City Council does not immediately forfeit his or her office by violating any provision of the Home Rule Charter or state law.
Contrary to the conclusions reached in the City Solicitor's Memorandum, Section 308 of the Home Rule Charter is not self-executing and a violation of that provision or any other provision of city or state law cannot result in automatic forfeiture of office. In Citizens Committee to Recall Rizzo v. Board of Elections of City of Philadelphia, 367 A.2d 232 (Pa. 1976), the Pennsylvania Supreme Court held that under Article VI, Section 7 of the state Constitution, the only means by which an elected municipal official could be removed from office was after an evidentiary proceeding and a vote for impeachment by two-thirds of the members of the State Senate. In that case, the court specifically held that a recall provision of the Philadelphia Home Rule Charter was invalid because it conflicted with the procedure established in the State Constitution. More recently, the court affirmed and broadened the scope of that decision. In re Petition to Recall Reese, 665 A.2d 1162 (Pa. 1995).
Those cases were relied upon by then President Judge Robert Kelly of the Court of Common Pleas of Allegheny County when he struck down an attempt to impeach Mayor Tom Murphy under a procedure established in the Pittsburgh Home Rule Charter. Petition of Genco, 2003 WL 25542219 (Ct. of Comm. Pl. of Ally. Cty. 2003).There, Judge Kelly held that the State Senate had the exclusive power to remove the Mayor or any other elected City of Pittsburgh official from office.
Accordingly, even if a member of Council has a conflict of interest when he or she votes on a piece of legislation, that action cannot constitutionally operate as grounds for automatic forfeiture of office.
II. Even if four members of Council had a conflict and voted on the final resolution approving Bill 308, approval of that bill would be valid.
Assuming that four members of Council voted on Bill 308 and approved payment of legal fees in the amount of $11,000.00 and the Mayor signed the bill, the alleged conflict of interest would not nullify approval of that bill.
In Yaracs v. Summit Academy, 845 A.2d 203, 209 (Pa. Commwth. Ct. 2004), the court held that when a council member has a conflict of interest or violates a law by voting on a municipal resolution, the resolution may not be overturned. The exclusive remedy is that the offending council member is subject to the statutory penalty. In that case, the remedy was to fine the council member but not to reverse council's action. Accord, Salem Tp. Mun. Auth. v. Tp. Of Salem, 820 A.2d 888, 894 (Pa. Commwth. Ct. 2003).
Accordingly, although I would not recommend that any member of Council vote on a bill knowing he or she has a conflict of interest, if the state legislature, after an evidentiary hearing, at some time in the future determines that four members of Council have a conflict on Bill 308, that would not defeat passage of the bill if they were to vote affirmatively on it at this time.
III. City Council may approve or ratify payment of city expenses even if they were incurred without prior Council approval.
Municipal bodies have been legally approving payment of municipal expenses incurred without prior approval for well over a hundred years. In re Grading of Shilol Street, 30 A. 986 (Pa. 1895). That case is still cited as authority for that type of municipal action in McQuillen, The Law of Municipal Corporations §16:92 (2008).
This practice has been followed on a regular basis by City Council without objection by this City Solicitor and previous City Solicitors.
Accordingly, the failure of council to grant prior approval for the payment of the legal fees is not an obstacle to council later ratifying the expense and approving payment.
IV. All members of City Council may discuss and vote on Bill 308 without violating any conflict of interest laws.
The City Solicitor's conclusion that certain members of council could not discuss or vote on Bill 308 was not based on a thorough consideration of the underlying facts or the applicable law. A review of the nature of the proceedings before the Zoning Board of Adjustment, a Commonwealth Court decision on standing before that Board and Supreme Court precedent on conflict of interest can lead to only one conclusion in this unique situation. None of the members of council are precluded from discussing or voting on Bill 308 because of state or municipal conflict of interest laws.
The underlying action that precipitated this issue was a decision by the City Zoning Administrator to grant a permit to Lamar Advertising to construct a large LED billboard in downtown Pittsburgh. No one now disputes that the grant of a permit was illegal. The problem is, however, that the City Solicitor did not rule that the action was illegal until almost four months after the City Administrator issued the permit. By then, five members of City Council had already challenged the action before the Zoning Board of Adjustment and the City Solicitor had already begun defending the Administrator's illegal action before the Zoning Board.
The reason that the permit issuance became the subject of litigation was because Councilman Patrick Dowd, individually, filed an appeal with the Zoning Board days before the appeal period would have expired. Councilman Dowd does not live downtown nor does he represent that district of the City. He did not have standing to file that appeal individually. City Council of City of Pittsburgh v. City of Pittsburgh, 625 A.2d 138 (Pa. Commwth. Ct. 1993). On the last day for filing an appeal with the Zoning Board, Councilmen Douglas Shields, William Peduto, Ricky Burgess and Bruce Kraus all filed an appeal which was consolidated with Councilman Dowd's appeal. Like Councilman Dowd, none of those four councilmen lives in or represents the downtown area of Pittsburgh. The only way that the five councilmen had standing under Council of Pittsburgh, id. at 143, was if the parties to the litigation before the Zoning Board treated the five councilmen as representing City Council.
The present City Solicitor represented the City of Pittsburgh in the Council of Pittsburgh case before the Commonwealth Court and had to be aware of the standing ruling in that case. Yet he did not characterize the councilmen as acting individually before the Zoning Board nor did he attempt to dismiss any of the members of Council for lack of standing. Further their appeal was treated as an appeal by Council before the Zoning Board. (See transcript of ZBA, April 10, 2008, p.9).
Thus, the City Solicitor does not have a basis for now saying that the council members hired counsel as individuals or acted before the Zoning Board as individuals when he never raised that issue before the Board and allowed them to participate in the only capacity in which they had standing, as Council.
The legal expenses were incurred to correct an illegal action which the city administration discovered was illegal four months too late but which City Council acting through a majority was able to reverse through its last minute appeal. Council has the authority to hire its own lawyers. Section 310 of the Home Rule Charter.
The members of council who retained attorneys and waged a successful attack on the administration's illegal action cannot be precluded from voting on Bill 308 which provides for payment of those legal expenses. This issued was addressed by the State Supreme Court in Consumer Party of Pennsylvania v. Commonwealth, 507 A. 2d 323, 338, ftn. 18 (Pa. 1986) in which the court held that members of the legislature could vote to reimburse themselves for expenditures because conflicts laws relate "to the type of interest of which other members could not be aware". The Supreme Court recognized that conflict laws were intended for secret interests and not matters as open and as well publicized as this one.
Rather than relying on clear Supreme Court conflict of interest precedent, the City Solicitor relied on two quite different types of cases, Yocabet v. State Ethics Commission, 531 A. 2d 536 (Pa. Commwth. Ct. 1987) and Keller v. State Ethics Commission, 860 A.2d 659 (Pa. Commwth. Ct. 2004) (both of which were cited incorrectly by the City Solicitor making it difficult to find the cases).
In Yocabet, a Township Supervisor appointed himself to a township position. The Board then set the salary rather than the Township Auditor, as required under state statute. That case involved a clear violation of the Second Class Township Code by the Supervisor, not a violation of conflict rules. In Keller, the mayor charged money for performing weddings and put the money in his own account. The court found that he did not have any authority under the Borough Code to treat that money as his own. Again that case is not the least bit similar to this case in which Council is attempting to pay legal bills incurred in the City's and the public's interest. Further, unlike a true conflict situation, all facts involving those bills are well known to Council, the public and the City administration.
Accordingly, the legal expenses were incurred so that Council as a body could have standing to legally challenge an illegal administration action. The hiring of attorneys and the representation before the Zoning Board was public and well publicized. The council members' attempt to discuss and vote on Bill 308 was the type of action sanctioned by the court in Consumer Party, 507 A.2d at 338. The City Solicitor did not have a legal basis to preclude Council from discussing or voting on Bill 308 nor did he have a legal basis for threatening them with forfeiture of office.
s/Marvin A. Fein