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HomeMy WebLinkAbout84-610 VidraCyril C. Vi dra , Solicitor Borough of Springdale 521 Willow Street Springdale, PA 15144 Dear Mr. Vi dra : STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 September 20, 1984 84 -610 Re: Blue Cross /Blue Shield, Participation by Solicitor, Payment from Borough Funds This responds to your letter of August 20, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether, as a Solicitor, you may request and receive Blue Cross and Blue Shield coverage under the policy paid for by the Borough you serve as Solicitor. Facts: You indicate that you currently serve as a Solicitor for the Borough of Springdale, hereinafter, the Borough. You have served in this capacity since 1962. In the early 1970's, you requested and received coverage under the Borough's Blue Cross and Blue Shield (hospitalization) policy rather than to seek or accept a raise in your monthly retainer for your legal services to the Borough. As a result of this request, you were included in the Borough's plan of Blue Cross and Blue Shield, the premiums for which are paid for by the Borough, and you retain this coverage this date. You indicate that in addition to yourself, the Borough has paid for such coverage for three other officials, specifically, three councilmembers. However, this coverage was discontinued with respect to these three councilmembers because of the legal questions which arose concerning the payment by the Borough of these coverages for such elected officials. To date, as a consequence of these questions, one councilmember has reimbursed the Borough in full and others have promised repayment or are seeking legal advice as to how to proceed. As a result of the question surrounding the propriety of inclusion of the councilmembers within this coverage, you also promised to raise the question of your coverage and the propriety of same and to secure an opinion of the Ethics Commission on this point. Cyril C. Vidra, Solicitor September 20, 1984 Page 2 Discussion: The Ethics Act, of course, regulates the conduct of "public officials ", "public employees" and Section 3(a) of the Ethics Act states that a public official or public employee may not use his office or position for his own personal gain. However, the basic question to be answered in order to determine whether or not the conduct outlined above and the coverage provided by the Borough is appropriate or prohibited under the Ethics Act, begins with a determination of whether or not you, as solicitor, are to be considered a "public employee" or a "public official" subject to the regulation of the Ethics Act. In this regard, we have a definitive interpretation by the Pennsylvania Supreme Court that a borough solicitor is not to be considered a "public employee" or a "public official" subject to the financial reporting and disclosure requirements of the Ethics Act. See Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981) and Snelbaker v. State Ethics Commission, Pa. , 468 A.2d 746 (1983). Accordingly, because you, as a solicitor, are to be considered neither a "public employee" nor a "public official ", the Ethics Commission would have no jurisdiction to regulate your conduct insofar as you would be filing a Statement of Financial Interests and, insofar as you might be otherwise bound by the provisions of Section 3(a) of the Ethics Act thereof which regulates the conduct of persons within the class of "public employee" or "public official ". Thus, it would seem that the answer to your question lies primarily on an analysis of the provisions of the Borough Code and whether or not pursuant to that Code, a solicitor may be entitled to participate in such insurance programs and to have the township pay for the premiums associated with such participation. We can make no comment as to the propriety of you participation in these programs under the provisions of the Borough Code as our jurisdiction is strictly limited to an interpretation of the Ethics Act and the conduct expected of "public officials" and "public employees" under said Act. Conclusion: As a solicitor for the Borough, you are to be considered neither a "public employee" nor a "public official" subject to the regulation of the Ethics Act as such. Accordingly, we can render no opinion as to the propriety under the Ethics Act of the conduct set forth above. 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. Cyril C. Vidra, Solicitor September 20, 1984 Page 3 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. SSC /na Sincerely, Sandra S. i ristianson General Counsel