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HomeMy WebLinkAbout88-524 PasquarelliSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 March 1, 1988 ADVICE OF COUNSEL Samuel J. Pasquarel li , Esquire 88 -524 219 Fort Pitt Boulevard Pittsburgh, PA 15222 Re: Conflict of Interest, Township Supervisor /Laborer, Simultaneous Service, Voting on Own Leave of Absence Dear Mr. Pasquarelli: This responds to your letter of January 25, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a township supervisor also working as a township laborer and upon his voting in favor of his own request for a leave of absence as township laborer. Facts: You state that you represent Mr. Samuel Testa who was elected as township supervisor in Hempfield Township, Westmoreland County, for a term of office beginning in the first Monday of January, 1988. You further state that prior to Mr. Testa's election, he was a bargaining unit member of the road department of Hempfield Township wherein he performed laborer work under the terms of a collective bargaining agreement between the Township and Teamsters Union Local No. 30. You state that in the collective bargaining agreement, there is a provision that an employee seeking a leave of absence must secure written approval from both the Union and the Township. In this regard, you note that Mr. Testa has secured the permission from the Union but as yet has to receive the requisite permission from the Township. You state that you expect that the vote will be two in favor and two against the leave of absence so that Mr. Testa as the fifth member of the Board would be the "swing" vote. You state that under the collective bargaining agreement, Mr. Testa would not obtain any financial advantage by receipt of a leave of absence since he would not be paid. You state that the only benefit relative to the leave of absence would be the retention of his seniority rights under the collective bargaining agreement. You ask whether Mr. Testa could, within the Ethics Act, vote under these circumstances. Secondly, you question whether Mr. Testa could continue Samuel J. Pa squa rel l i , Esquire March 1, 1988 Page 2 as a laborer on the township road department while simultaneously serving as elected supervisor provided he would not vote on any issue affecting wages, hours or other terms or conditions of employment. You ask whether this is proper under the Ethics Act and, if so, what other conditions would attach to his dual status as laborer and elected supervisor. Discussion: As a township supervisor for Hempfield Township, Mr. Testa is a "public official" as that term is defined under the Ethics Act. See Vole Order, 579 -R; 65 P.S. §402; 51 Pa. Code §1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. As to whether the Ethics Act would restrict or prohibit a township supervisor from also serving as a township laborer, it is noted that the State Ethics Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the State Ethics Act. The Commission does not specifically have the statutory jurisdiction to interpret the provisions of Second Class Township Code. Section 3(a) of the Ethics Act provides: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Comm. , 531 A.2d 536 198 _ Pa. prosfiiiiTT official not use his public positionuto any c himself or his immediate family unless it is provided for by law. � `� for Domalakes Opinion, 85 -010. Samuel J. Pasqua rel l i , E squi re March 1, 1988 Page 3 The Ethics Act does not state that it is inherently incompatible for a township supervi sor to serve as township laborer. Therefore, consistent with the Ethics Act, Mr. Testa can serve in the dual position of township supervisor and township laborer. Supervisors may serve as either superintendent or roadnuster, secretary /treasurer or laborer with the township auditors setting the compensation. See Yacobet Order, supra. Further, the Commission has also determined that a supervisor in a working position such as laborer is not entitled to benefits such as medical benefits unless the supervisor is in a working position and there has been auditor approval for those benefits. See McCutcheon, supra. Since you have only posed a very general question as to what other conditions might attach to Mr. Testa's status as employee and supervisor, the above is to be considered only as a general response as to certain restrictions which the Commission has determined apply to working township supervisors under the Ethics Act. Regarding your other inquiry as to whether Mr. Testa as a township supervisor could vote on the matter of his own leave of absence as a laborer from the road department, Section 3(a) of the Ethics Act would not prohibit Mr. Testa from voting provided his vote would not result in any financial gain on his part. In this regard, you have stated that Mr. Testa would not obtain any financial gain resulting from the granting of a leave of absence. Section 3(d) of the Ethics Act provides: Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). However, under Section 3(d) of the Ethics Act, the State Ethics Commission may address other areas of possible conflicts of interest. 65 P.S. §403(d). The parameters of the types of activities encompassed by this provision of law may generally be determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests of public official do not conflict with the public trust or create the appearance of a conflict with the public trust. Thus, although Section 3(a) of the Ethics Act would not prohibit Mr. Testa from voting on his own leave of absence provided it would not result in any financial gain to him, under Section 3(d) of the Ethics Act, it would be the better practice for Mr. Testa not to vote in this matter so as not to create the _appearance of a conflict of interest together with noting his abstention of record together with the reason for his abstention. Samuel J. Pasqua rel li , Esquire March 1, 1988 Page 4 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a supervisor for Hempfield Township, Mr. Testa is a public official subject to the provisions of the Ethics Act. Under Section 3(a) of the Ethics Act, there is no per se prohibition upon Mr. Testa from simultaneously serving as township supervisor and township laborer subject to the restrictions and limitations noted above. Further, under 3(a) of the Ethics Act, Mr. Testa is not precluded from voting upon his own leave of absence from the labor force, provided such action would not result in financial gain, although under Section 3(d) of the Ethics Act the better practice would be for him to abstain and note his abstention of public record together with the reasons for such abstention so as to avoid even an appearance of a conflict. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 7(9)(71), this 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, providing 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Since rely, Vincent J. Dopko General Counsel a