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Home My WebLink About10-568 Whitmoyer ADVICE OF COUNSEL April 12, 2010 Ronald S. Whitmoyer 8 Ketterman Hill Road Richland, PA 17087 10-568 Dear Mr. Whitmoyer: This responds to your letter dated February 11, 2010, received February 19, 2010, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., a supervisor for a second class township, who is considered a “regular part-time employee” of the township, would be permitted in his capacity as a part-time township employee to receive vacation and holiday pay when such has not been approved by the township board of auditors. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts, the material portion of which may be summarized as follows. You are a Supervisor for Tulpehocken Township (“the Township”), located in Berks County, Pennsylvania. The Township is a second class township. You state that you have been employed by the Township for approximately fifteen years. You further state that you are considered a “regular part-time employee” as that term is defined by the Tulpehocken Township Policy and Procedures Handbook (“Employee Handbook”). You have submitted a copy of the Employee Handbook. You state that in setting your employee compensation for 2010, the Township Board of Auditors denied you the vacation and holiday benefits that other part-time Township employees enjoy. Based upon the above submitted facts, you ask whether approval by the Township Board of Auditors would be required in order for you to receive vacation and holiday pay in your capacity as a part-time Township employee. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not Whitmoyer, 10-568 April 12, 2010 Page 2 been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. Preliminarily, it is noted that you have not submitted an official job description for your position as a part-time Township employee. This advisory does not address whether you are a “public employee” subject to the Ethics Act in that position. As a Township Supervisor, you are a public official as that term is defined in the Ethics Act, and therefore you are 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). 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 Whitmoyer, 10-568 April 12, 2010 Page 3 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. In each instance of a conflict of interest, the public official/public employee would be required to abstain fully from participation. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office, including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official/public 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. Although the State Ethics Commission does not have the statutory jurisdiction to interpret the Second Class Township Code, Section 65606(a) of the Second Class Township Code must be considered in order to determine whether the aforesaid vacation and holiday pay would be considered a private pecuniary benefit without authorization in law. See, Thompson, Opinion 99-005. Section 65606(a) of the Second Class Township Code provides, in pertinent part, as follows: § 65606. Compensation of supervisors (a) … The compensation of supervisors, when employed as roadmasters, laborers, secretary, treasurer, assistant secretary, assistant treasurer or in any employe capacity not otherwise prohibited by this or any other act, shall be determined by the board of auditors, at an hourly, daily, weekly, semi-monthly or monthly basis, which shall be comparable to compensation paid in the locality for similar services…. 53 P.S. § 65606(a). The Commonwealth Court of Pennsylvania has stated that the “compensation” of a supervisor/employee under the Second Class Township Code “includes more than Whitmoyer, 10-568 April 12, 2010 Page 4 mere wages; it also includes fringe benefits such as insurance, pension, and medical plans and premiums.” Synoski v. Hazle Township, 500 A.2d 1282, 1285 (Pa. Cmwlth. 1985). In response to your specific question, you are advised that Section 1103(a) of the Ethics Act would permit you to receive vacation and holiday pay in your capacity as a part-time Township employee subject to the condition that such pay would be approved for you by the Township Board of Auditors. Cf., McKenna, Advice 99-552. To the extent vacation and holiday pay would not be approved for you by the Township Board of Auditors, it would constitute a private pecuniary benefit and could form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Supervisor for Tulpehocken Township (“the Township”), located in Berks County, Pennsylvania, you are a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Section 1103(a) of the Ethics Act would permit you to receive vacation and holiday pay in your capacity as a part-time Township employee subject to the condition that such pay would be approved for you by the Township Board of Auditors. To the extent vacation and holiday pay would not be approved for you by the Township Board of Auditors, it would constitute a private pecuniary benefit and could form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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, Robin M. Hittie Chief Counsel