HomeMy WebLinkAbout88-530 SzymanowskiMr. Joseph J. Szymanowski
McKean Township Supervisor
2739 South Hill Road
McKean, PA 16426
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
March 9, 1988
ADVICE OF COUNSEL
88 -530
Re: Conflict of Interest, Township Supervisor, Supervisors as Superintendent
and Laborers, Supervisors as Roadmasters and Laborers, Supervisor as
Roadmaster in one District and Laborer in another District
Dear Mr. Szymanowski:
This responds to your letter of February 4, 1988, in which you requested
advice from the State Ethics Commission.
Issue: Whether the State Ethics Act imposes any prohibition or restriction
upon township supervisors wherein one would serve as a superintendent and the
other two as laborers or wherein two would serve as roadmasters and one would
serve as a laborer or wherein two or three would serve as roadmasters in
districts while they would simultaneously serve as appointed laborers in other
districts.
Facts: In your advice request you state that you are one of the supervisors
in McKean Township and pose three questions under the Second Class Township
Code as it would relate to your conduct as second class township supervisors.
You state that in McKean Township there is a three member board of township
supervisors who receive compensation in accordance with the Second Class
Township Code. You then ask whether the board of supervisors may appoint one
supervisor as superintendent and the other two supervisors as laborers to work
part or full -time. Secondly, you ask whether the board of supervisors could
appoint two supervisors as roadmasters and the remaining one supervisor as a
laborer. Thirdly, you ask whether one supervisor could hold simultaneously
the position of roadmaster or laborer. As to the third inquiry, you have
stated in a telephonic communication that your third question specifically is
whether three supervisors may appoint two or three roadmasters to work in
districts followed by their being appointed laborers to work in other township
districts, that is, can a supervisor roadmaster work as a laborer in another
district. You conclude by referencing Section 514 of the Township Code in
relation to your conduct as a township supervisor under the Ethics Act.
Mr. Joseph Szymanowski
March 9, 1988
Page 2
Discussion: As a supervisor for McKean Township, you are a "public official"
as that term is defined in the Ethics Act. See Volpe Order, No. 579 -R; 65
P.S. §402; 51 Pa. Code §1.1. As such, your conduct is subject to the
provisions of the Ethics Act and the restrictions therein are applicable to
you.
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 or employee 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.
COMM. 529 (1983). See also Yocabet v. State Ethics Commission, Pa.
Comm. , 531 A.2d 536 (1987). Thus, under this provision, a public
official may not use his public position to secure benefits for himself or a
member of his immediate family which are not provided for by law, Domalakes
Opinion, 85 -010; likewise, the receipt of private financial gain or benefit
through use of office is not permitted under this section, Huff Opinion,
84 -015.
Initially, 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 the Second
Class Township Code. If, however, another provision of law somehow impacts on
the provisions of the State Ethics Act or the Ethics Act accords jurisdiction
in relation to other provisions of law, then this Commission may be required
to interpret such provisions of law. See Bigler Opinion, 85 -020.
Mr. Joseph Szymanowski
March 9, 1988
Page 3
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.
§65514. Road districts; superintendents and roadmasters
The board of township supervisors, immediately after
their organization, shall divide the township into one
or more road districts. They shall employ a
superintendent for the entire township or a roadnaster
for each district. Every superintendent for the entire
township or a roadmaster for each district. Every
superintendent and roadmaster, so employed, must be a
person physically able to work on and maintain the
roads. Township supervisors may require such
superintendents or roadmasters to give bond, with a
surety company or other company authorized by law to
act as surety, for the faithful performance of their
duties. The superintendent or roadmasters shall be
subject to removal by the board of supervisors. The
supervisors shall fix the wages to be paid, either per
hour, per day, per week, semi- monthly or monthly, to
the superintendent or roadmasters and laborers for work
on the roads and bridges, which wages shall not exceed
wages paid in the locality of similar services.
This section shall not prohibit the township
supervisors from being employed as superintendents or
roadmasters, or as laborers, if physically able to work
on and maintain the roads. With regard to boards of
supervisors which are designated as three - member
boards, any supervisor who is to be considered by such
a board for a position as a compensated employe of the
township, as authoried by this section, shall not be
excluded from voting on the issue of such appointment;
such action by a supervisor shall be deemed to be
within the scope of authority as a supervisor and
shall not be deemed to constitute an illegal or an
improper conflict of interest. In such cases they
^r4- employ a superintendent e^
their compensation shall be .,,eu as nercâ– liai Ler
provided.
Mr. Joseph Szymanowski
March 9, 1988
Page 4
Two or more townships may appoint the same person as
superintendent. 65 P.S. §65514.
It is now necessary to review the above quoted section of the Second
Class Township Code solely as it relates to Section 3(a) of the Ethics Act.
Section 514 basically provides that the township supervisors will either
divide the township into one district or several districts. The statutory
provision then provides that there can only be a superintendent if the
township is divided into one district or there may be a roadma ster for each
district if the township is divided into several road districts. The first
paragraph of the quoted section then provides for certain requirements as to
supervisors who are employed as roadmasters or a superintendent. The second
paragraph of the above provision then provides, as to three - member boards of
supervisors only, that supervisors may be employed as superintendents or
roadmasters or laborers if they are able to work and that they may vote on the
matter of their appointments to these positions. However, the last sentence
of the second paragraph explicitly provides that in such cases, that is,
supervisors being employed in a working capacity, that they, the board of
supervisors, may not employ either a superintendent or roadmasters.
It is a fundamental rule of statutory construction that when statutes are
free and clear, the language of the statute may not be disregarded. 1 Pa.
C.S.A. §1921(b). Further, it is presumed that the General Assembly intends
that the entire statute to be effective and certain. 1 Pa. C.S.A. §1922(2).
Thus, the last sentence of the second paragraph of Section 514 must be given
effect. That sentence is clear that if a three member board of supervisors
vote on appointments as to working positions of either a superintendent or
roadmasters or laborers, they cannot employ a superintendent or roadmasters.
However, the first sentence of that paragraph provides that supervisors may be
employed as a superintendent, roadmasters or as laborers. Thus, the last
sentence should not be construed so as to negate the first sentence, 1 Pa.
C.S.A. 1921(a); otherwise, the result would be an absurd construction, 1 Pa.
C.S.A. 1922(1). In order to read the Section 514 in its entirety, the
conclusion is clear and inescapable that if the three supervisors have
appointed themselves as laborers in the township, they may not appoint one of
themselves or employ a non- elected individual as superintendent; Szymanowski
Advice, 88 -501, otherwise, the supervisors would be laborers and they would be
empl oyi ng the superintendent contrary to the express prohibition of Section
514. If one supervisor were appointed as superintendent and two served as
laborers, the first sentence of paragraph two of Section 514 would not appear
to preclude such service. Likewise, if one supervisor were appointed as
laborer, while the other two -were roadmasters, the first sentence of the
second paragraph of Section 514 would be applicable and would appear to allow
the appointment.
Mr. Joseph Szyma nowski
March 9, 1988
Page 5
Lastly, as to your third inquiry concerning supervisors being laborers in
one district and roadmasters in another district, the last sentence of
paragraph two would preclude the supervisor laborer from also serving as a
roadmaster in another district. It would make no difference if there were two
or three roadmasters in a district and the supervisors were laborers in
another district because Section 514 makes no distinction on a district basis.
Hence, if the supervisors are appointed as laborers, they may not be employed
as roadmasters even though it is in a different township district.
Lastly, the propriety of the proposed conduct has only been addressed
under the Ethics Act.
Conclusion: As a township supervisor in McKean Township you are a public
official subject to the provisions of the Ethics Act. Under Section 3(a) of
the Ethics Act, if a three member township board of supervisors appoints two
of their members as laborers, the third supervisor may be employed as a
superintendent. Similarly, under Section 3(a) of the Ethics Act, if a three
member township board employs a supervisor as laborer, they may appoint the
remaining two supervisors as roadmasters. Thirdly, under Section 3(a) of the
Ethics Act supervisors may not appoint two or three of themselves as
roadmasters in one district and as laborers in other districts of the
township. Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Act.
Pursuant to Section 7(9)(i1), 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 he 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 Dopko
General Counsel