concurring.
I concur in the result only. The majority correctly concludes that the Supervisors are entitled to a public defense in the recall action. However, I disagree with the majority’s statement that Silver v. Downs, 493 Pa. 50, 425 A.2d 359 (1981) 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.
Silver does not authorize the procedure sanctioned by the majority: to wit a hearing in a recall action to determine whether substantial evidence supports charges alleging criminal misconduct.
Silver declares the proposition that, pursuant to Section 582 of the Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65582,1 Township Supervisors are entitled to representation, at public expense, in recall actions. The Supreme Court reasoned that the cost of legal counsel is but one of a multitude of expenses which the township must incur in connection with the institution of recall proceedings because few public servants, however dedicated, would risk substantial personal resources to defend their official acts.
The fact that the petitioners have crafted their recall allegations to also imply criminal misconduct for which a supervisor may be individually responsible is irrelevant. As the majority correctly notes, by its very nature, petitioners in all recall actions must allege that an official neglected or failed to carry out official duties which amount to criminal or culpable indifference to their official duties. See Matter of Franklin Township Board of Supervisors, 475 Pa. 65, *330379 A.2d 874 (1977). Therefore, any allegations of criminal misconduct relevant in a recall action must necessarily be related to the supervisor’s official actions and, pursuant to the public policy enunciated in Silver, the supervisor is entitled to representation at public expense. If a township supervisor is prosecuted for such criminal conduct, then of course he must bear, the cost of his own defense.
In the case before us, the two allegations which the majority characterizes as possibly leading to criminal prosecution are allegations based upon misuse of the Supervisors’ public offices in connection with a developer’s subdivision application. Clearly, those actions taken while an application for approval of a subdivision was pending, are well within the Supervisors’ official duties. Consequently, any recall action based on those official acts entitles the Supervisors to representation at taxpayer expense.
. This section provides in pertinent part as follows:
The township solicitor, when directed or requested to do so, shall ... defend all actions or suits against the township, or any officer thereof, wherein or whereby any of the estates, rights, privileges, trusts, ordinances or accounts, of the township, may be brought in question before any court in the Commonwealth ...