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HomeMy WebLinkAbout84-583 MustoJoseph R. Musto, Esquire McCormick, Reeder, Nichols, Sarno, Bahl & Knecht 835 West Fourth Street P.0 Box 577 Williamsport, PA 17703 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 July 3, 1984 ADVICE OF COUNSEL 84 -583 Re: Borough of Jersey Shore, Councilmen, Mayor, Insurance Coverage Dear Mr. Musto: This responds to your letter of May 10, 1984, in which you, as solicitor, requested advice from the State Ethics Commission. Issue: You ask whether it is legal for the Mayor and the Councilmen within the Borough of Jersey Shore to participate in insurance programs maintained by the Borough. Facts: You indicate that you serve as solicitor for the Borough of Jersey Shore, hereinafter, the Borough. You were recently asked to determine whether elected Borough officials such as the Mayor and any member of Council can participate in group insurance programs that cover the Borough employees. Specifically, a proposal is currently under consideration which would require that any elected official who wishes to be included in such Borough policies would pay all premiums arising out of his or her coverage from their own resources. The Borough's insurance carrier has indicated that such officials could be included within the group policy maintained by the Borough without jeapordizing coverage of other Borough employes. You indicate that the Borough would not pay any premiums or other expenses with respect to the coverage for the elected officials such as the Mayor or the members of Council. There would be no Borough action involved in securing this coverage except that perhaps, the Borough would be required to verify that the persons Joseph R. Musto, Esquire July 3, 1984 Page 2 seeking inclusion in such group policies were, in fact, elected Borough officials. Otherwise, there would be no Borough action taken or necessary to include these officials within the insurance coverages because these officials would contact the insurance carrier themselves and pay the premiums themselves for such coverages. You indicate that you have reviewed this question and find no statutory prohibition to preclude this type of participation under these circumstances. However, you wish to have a response about this proposal with respect to any potential violation of ethical standards under the State Ethics Act. Discussion: As elected officials both the Mayor and the members of Borough Council are to be considered "public officials" as that term is defined in the State Ethics Act. Accordingly, they must conform their conduct to the requirements of the State Ethics Act. Specifically, the requirement that would be most clearly in question here would be Section 3(a) of the State Ethics Act which provides as follows: Section 3. Restricted Activities. ja) No public otticial 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). The Commission has recently reviewed such questions in light of the requirements of Section 3(a) of the Ethics Act under circumstances that are substantially similar to those which you present. In its Opinion in Davis, 84 -012, this Commission concluded that the Borough Code under which this particular municipality must operate and certain provisions of the Insurance Code can be read to authorize the elected officials such as the Mayor and Council members to participate in the Borough's group health and life insurance programs. See Davis, at pages 10 -11 and 40 P.S. 535, 756.2, and 532.2. See also Borough Code, 53 P.S. 46001, 46025, 46202, 48501, and 46404. In Davis, the Commission concluded that while the council members and Mayor could participate in the programs, they could not secure these coverages to be paid for by the Borough in excess of the compensation limits which were provided in the Borough Code or properly enacted ordinances. In your case, however, it is clear that the individual members of Council and the Mayor would pay for the premiums for their participation in these policies themselves. Under such circumstances, there is no Opinion of the State Ethics Commission which would prohibit this activity. Joseph R. Musto, Esquire July 3, 1984 Page 3 Conclusion: This Commission has concluded that the Mayor and members of a Borough Council can not receive and secure for themselves, through the use of their public office, compensation, whether in the form of monthly payments, salary, or the value of insurance premiums paid for by the Borough or combination thereof, which exceeds the compensation allowed or limited by law to each of these officials. However, the participation of such individuals, at their own expense in group insurance policies maintained by the Borough is, under these circumstances, not prohibited by Section 3(a) of the Ethics Act. Such participation as is described herein would not, under the opinions of the Ethics Commission, be considered a use of office to secure financial gain beyond the limits of compensation allowed or provided by law to these officials. 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. SSC /na 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 full 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. cc: Emerson Kline Sincerely, f � Sandra S. Christianson General Counsel