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Home My WebLink About90-504 GatesSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 Mr. Samuel K. Gates, Esquire Gates &Mooney Trial Attorneys 250 York Street Hanover, PA 17331 ADVICE OF COUNSEL January 19, 1990 90 -504 Re: Simultaneous Service, Township Supervisor, Township Manager. Dear Mr. Gates: This responds to your letter of December 18, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restriction upon a second class township supervisor from also serving as compensated township manager. Facts: As the solicitor for Jackson Township, you inquire as to whether a township supervisor who has been requested to become township manager may remain as supervisor and also serve as a paid township manager. Discussion: As a supervisor for Jackson Township, the individual is a "public official" as that term is defined in the Ethics Law and hence he would be subject to the provisions of the Ethics Law. 65 P.S. 402. As to whether the Ethics Act would restrict or prohibit the supervisor from also serving as compensated township manager, 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 Public Official and Employees Ethics Act. The Commission does not specifically have the statutory jurisdiction to interpret the provisions of Second Class Township Code. If, however, another provision of law somehow impacts on the provisions of the Ethics Law or the Ethics Law accords jurisdiction in relation to other provisions of law, Mr. Samuel R. Gates, Esquire Page 2 then this Commission may be required to interpret such provisions of law. See Bigler, Opinion 85 -020. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: "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 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. "Conflict" or "conflict of interest" 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 or 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. In addition, Sections 3(b) and (c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Mr. Samuel K. Gates, Esquire 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, through the authority of public office, would also be a use of the authority of office contrary to Section 3(a) of the Ethics Law. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific pecuniary benefit or financial gain is prohibited by law. In order to determine whether a particular pecuniary benefit or gain is strictly prohibited by law, the provisions of the Second Class Township Code must be reviewed: Section 514 of the Second Class Township Code provides: 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 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 for 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 employee of the township, as authorized 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 shall not employ a superintendent or roadmasters and their compensation shall be fixed as hereinafter provided. 53 P.S. 65514. Mr. Samuel K. Gates, Esquire Page 4 such. The Second Class Township Code does not appear to contain any exceptions to the above provision that is applicable in the instant situation. Therefore, if the supervisor attempts to simultaneously serve in both of these positions, he would be doing so contrary to the provisions of Second Class Township Code. Parenthetically, the Pennsylvania Townshiv News, June 1988, specifically notes that the positions of supervisor and township manager are manager incompatible. Further, if he were to serve as Second Class Township Supervisor while simultaneously serving as compensated township manager, he would be holding the position of compensated township manager which is expressly prohibited by law. Although only the Pennsylvania General Assembly has the inherent authority to declare offices incompatible, the State Ethics Commission may review the Ethics Law to determine that a conflict exists based upon the statutory incompatibility. Johnson, Opinion 86 -004. As a result of the foregoing, any salary, benefits or gain which the public official would receive in that office would not be authorized in law in light of the foregoing incompatibility provision; consequently, any gain or pecuniary benefit that the public official would receive would be a gain other than compensation provided for by law. Ring, Opinion 85 -025. Lastly, it must be noted that the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Conclusion: As a second class township supervisor for Jackson Township, the individual is a "public official" subject to the provisions of the Ethics Law. As a public official he may not, consistent with the provisions of the Ethics Law, simultaneously serve in the positions of second class township supervisor and compensated township manager. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. 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 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 Mr. Samuel K. Gates, Esquire Page 5 Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, Vincent J. Dopko, Chief Counsel