Loading...
HomeMy WebLinkAbout89-505 HerlandsScott A. Herlands, Esquire 240 Penn Avenue 2nd Floor Scranton, PA 18503 Dear Mr. Herlands: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 8, 1989 89 -505 Re: Conflict of Interest, Township Supervisor, Compensation for Attending Workshop This responds to your letter of January 12, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon a second class township supervisor from being paid for attending workshops. Facts: You state that you are the Solicitor for Overfield Township and that you are writing concerning an inquiry of Supervisor Bonnie Gregory relating to whether a supervisor can be paid for attending workshops. You note that Ms. Gregory has received $35.00 plus mileage for attending eight workshops during 1988 which were held for newly elected supervisors sponsored by DCA, zoning workshops sponsored by Penn State University and a recycling workshop. After advising that Supervisor Gregory was elected in January, 1988 and is being paid a flat rate of 1,500.00 per year, you question whether Supervisor Gregory is ineligible to receive the payments for attending workshops. Discussion: As a Supervisor for Overfield Township, Bonnie Gregory is 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. 5402; 51 Pa. Code S1.1. As such, her conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to her. Scott A. Herlands, Esquire February 8, 1989 Page 2 Preliminarily it should be noted that a reading of Section 7(9)(i)(ii) of the Ethics Act makes it clear that an opinion /advice may be given to a public official /employee as to a prospective course of conduct. Since you have noted that Bonnie Gregory has already received payments of $35.00 plus mileage for attending eight workshops in 1988, such is past action and may not be addressed in this advice. Therefore, this advice will only address the propriety of receiving the $35.00 fee plus mileage as to any future workshops which Supervisor Bonnie Gregory would attend. 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. In applying the above provision of law to the instant matter, the question in this case is not whether the $1,500.00 flat rate payment to Supervisor Gregory makes her ineligible to receive payments for attendance at workshops but rather whether there is any provision in the Second Class Township Code which would specifically authorize the payment to Supervisor Gregory of the $35.00 plus mileage as part of her compensation for attending Scott A. Herlands, Esquire February 8, 1989 Page 3 workshops. In reviewing the Second Class Township Code as amended, Section 515 sets forth the rate of compensation for township supervisors depending upon the population density of the municipality. Additionally, Section 602 of the Township Code provides for payments to township supervisors and other individuals for a maximum of two days attendance at conventions which are delineated in Section 601. In addition, Section 612 sets forth the allowances for expenses for attending the annual meeting. Section 516(h) of the Township Code provides: (h) Attend meetings and conventions if directed to do so by the board of supervisors. Any supervisor, elected or appointed officer or township employe shall, if directed by the board of supervisors, attend any conference, institute or school dealing with the duties and functions of such elected or appointed officers or employes. The actual expenses for attending the conferences, institutes and schools may be paid by the township and shall be limited to actual expenses not to exceed ninety dollars ($90) per day plus the registration fee and mileage going to and returning from such meetings. 53 P.S. S65516(h). There is a provision in law which would authorize the payment of these monies for a township supervisor for attending such workshops, provided the requisite direction is received by the Board of Supervisors. Since there is a provision in law which would authorize the receipt of this financial gain, then the payments would be compensation provided for by law and would not be contrary to Section 3(a) of the Ethics Act. The foregoing is based upon the express assumption that the payments are within the statutory limitations of Section 516(h). Since Ms. Gregory would only receive $35.00 plus mileage, it appears that the compensation does fall within the limits of §516(h). The Commission has found second class township supervisors in violation of the Ethics Act in instances where they received payments for administrative matters or outside meeting pay or other compensation which was not provided for in the Second Class Township Code. See Neuberger, Order 596; Serovich, Order 662; Vachon, Order 607. Scott A. Herlands, Esquire February 8, 1989 Page 4 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a Second Class Township Supervisor Bonnie Gregory is a public official subject to the provisions of the Ethics Act. The propriety of the receipt of $35.00 plus mileage for attending workshops last year may not be addressed in this advice since that is past. action. As to payments for future attendance at workshops, payments of $35.00 plus mileage is authorized for a supervisor for attending workshops under the Second Class Township Code, provided there is the requisite approval by the Board of Supervisors. Since there is a provision in law for payment of attending workshops, such would be compensation provided for by law in comformity with Section 3(a) of the Ethics Act. Accordingly, Supervisor Gregory may receive payments of $35.00 plus mileage for attending workshops which are within the monetary limits of the Second Class Township Code. 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 S2.12. S' cerely, L o Vincent J. Dopko, General Counsel