The URL can be used to link to this page

Home My WebLink About88-528 BurchamMr. Willie M. Burcham Supervisor Franklin Township Supervisors P. 0. Box 309 Cashtown, PA 17310 -0309 Dear Mr. Burcham: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (7171 783-1610 March 7, 1988 ADVICE OF COUNSEL 88 -528 Re: Conflict of Interst, Township Supervisor, Working Part -Time, Benefits This responds to your letter of February 1, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any prohibition or restriction upon a township supervisor who works part time from receiving a percentage of full benefits. Facts: In your advice request you state that you are the supervisor for Franklin Township. You then ask if a supervisor would work 20 -30 hours a week, would he be entitled to receive a percentage of full benefits such as vacation, sick pay, personal days or insurance coverage under the State Ethics Act. Discussion: As a supervisor for Franklin Township, you are a "public official" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act. 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). yr. ' , M. Burcham March 7, 19?P Page 2 Fection 3(a) basically provide C,a1 ? pubic cffici ;r - °i ;got use his pubic office or confidential informatics 1 ilailcSa1 gain other than compensatiicn as provided for by law for h;^tself or a member of his immediate family or business with which "1e as'ociated. Under this provision, the Ethics ,.:ommi ssion 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, Pa. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure any financial gain for himself or a member of his immediate family unless it is provided for by law. Domalakes Opinion, 85 -010. The Commission has determined if a particular statutory enactment prohibits an official from receiving of a particular benefit, then that official's receipt of such a prohibited benefit, in and through his public office, would also be a use of his office in violation of the Act. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific benefit or financial gain is prohibited by law. See, Allen Advice, 86 -518. In order to determine whether a particular benefit or gain is strictly prohibited by law, the provisions of the Second Class Township Code must be reviewed. The Second Class Township Code provides that township supervisors shall receive the following Compensation: Compensation of Supervisors -- .Supervisors may receive from the general township fund, as compensation, an amount fixed by ordinance not in excess of the fol lowi ng: Township Population Not more than 4,999 5,000 to 9,999 10,000 to 14,999 15,000 to 24,000 25,000 to 34,999 Such salaries shall for the duties imposed by population shall be dete official census figures. Annual Maximum Compensation Fifteen hundred dollars Two thousand dollars Twenty -six hundred dollars Thirty -three hundred dollars Thirty -five hundred dollars be payable monthly or quarterly the provisions of this act. The rmined by the latest available The compensation of supervi sors, Mr. Willie M. Burcham March 7, 1988 Page 3 when acting as superintendents, roadmasters or laborers, shall be fixed by the township auditors either per hour, per day, per week, semi- monthly or monthly, which compensation shall not exceed compensation paid in the locality for similar services, and such other reasonable compensation for the use of a passenger car, or a two axled four - wheeled motor truck having a chasses weight of less than two thousand pounds when required and actually used for the transportation of road and bridge laborers and their hand tools and for the distribution of cinders and patching material from a stock pile, as the auditors shall determine and approve; but no supervisor shall receive compensation as a superintendent or roadmaster for any time he spends attending a meeting of supervisors. 65 P.S. §65515, as amended Act 68, 1985. The State Ethics Commission has determined that working township supervisors may receive certain benefits provided two conditions are met: t! ;e supervisors must be in one of the working positions, that is, sup2ri ntendent, roadmaster, secretary, treasurer or laborer and secondly, there must be the requisite auditor approval. See McCutcheon, supra. In addition, this Commisison has determined that a working supervisor who has the auditor approval may receive a percentage of benefits if he is not working full -time. See Na novi c Opinion, 85 -005. However, the Commisison in Na novi c, supra, expressly found that the relationship between the benefits received and the amount of time which the supervisor works must be reasonable. The Commi ssicn also noted in that regard that it is the function of the auditors to make '' he determination as to a reasonable correlation between time worked and the percentage of benefits received. Thus, it has been determined that a superviscr who worked 40 hours over a years time was not entitled to any benefits whatsoever. See Flower Advice, 85 -528. It is clear that the compensation to which a working supervisor, wit auditor approval, is entitled includes benefits such as insurance, pensio:;, medical benefits and hence vacation, sick pay or personal days. See S ny °ski v. Hazel Township, Pa. Cmwlth. Ct. 500 A.2d 1282 (1985). Thus, a part -time working supervisor could receive a percentage of these benefits provided there is the requisite approval of the auditors as well a :; the exi st;,nce of a reasonable ;rcelation between the percentage of the benefits and the amount f ti actually worked. Las the propriety of your proposed conduct has only been addressed under tt:e Ethics Act Mr. Willie M. Burcham March 7, 1988 Pagr 4 Conclusion: As a township supervisor for r rank'i i n township, you are a public official subject to the provisions of the Ethics Act. A part -time working supervisor may under the Ethics Act receive a percentage of full benefits provided there is the requisite auditor approval and provided there is a reasonable correlation between the amount of time worked and the percentage of benefits received. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 7(9)(ii), 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. Sincerely, Vincent J. Dopko General Counsel