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HomeMy WebLinkAbout85-603 SchroeckMr. George M. Schroeck 338 West 6th Street Erie, PA 16507 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 December 17, 1985 ADVICE OF COUNSEL The State Ethics Act provides as follows: 85 -603 Re: Township Supervisor, Compensation, Attendance at Meetings Dear Mr. Schroeck: This responds to your letter of Octoher 31, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether township supervisors, in a township of the second class may he compensated,for their attendance at meetings that do not involve formal township husiness. Facts: You are the solicitor for Girard Township, and have requested the advice of the State Ethics Commission regarding the above issue. You indicate that at the township's annual reorganization meeting which is held in January of each year, supervisors are chosen to represent the township at various meetings on subjects of interest to the township. You indicate that these meetings include the state convention of township supervisors, the township sewer authority, the county planning commission, and various other committees where the supervisor represents the township hut is not involved in formal township husiness. You have requested advice as to whether the supervisors attending such meetings may he paid for their attendance at such meetings. You specifically request to know whether the supervisors may themselves authorize and approve payment for attending said meetings. You finally ask, if the supervisor cannot he paid for their attendance at such township meetings, for what, if any, township duties may they he paid. Discussion: Township supervisors in townships of the second class are public officials as that term is defined in the State Ethics Act. 65 P.S. 6402. As such, their conduct must conform to the requirements of the State Ethics Act. See Sowers, 80 -050. Mr. George M. Schroeck December 17, 1985 Page 2 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). Within the above provision of law, this Commission has already determined that township supervisors may not approve or accept any compensation for themselves that is not in accordance with the compensation set forth in the Second Class Township Code. This determination has been affirmed by the Commonwealth Court of Pennsylvania. See rlcCutcheon v. State Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 283, (1982). Compensation awarded or received by a township supervisor that is not in accordance with the provisions of law could constitute a violation of the above cited section of the State Ethics Act. The Second Class Township Code provides that township supervisors shall receive the following compensation: Compensation of Supervisors -- Supervisors may receive from the general township fund, as compensation, an amount fixed by ordinance not in excess of the following: Township Population Not more than 4,999 5,000 to 9,999 10,000 to 14,999 15,000 to 24,000 25,000 to 34,999 35,000 or more Annual Maximum Compensation Fifteen hundred dollars Two thousand dollars Twenty -six hundred dollars Thirty -three hundred dollars Thirty -five hundred dollars Four thousand dollars Such salaries shall be payahle monthly or quarterly for the duties imposed by the provisions of this act. The population shall he determined by the latest available official census figures. The compensation of supervisors, when acting as superintendents, roadmasters or laborers, shall be fixed by the township auditors either per hour, Mr. George M. Schroeck December 17, 1985 Page 3 per day, per week, semi - monthly or monthly, which compensation shall not exceed compensation paid in the locality for similar services, and such other reasonable compensation for the use of a passenger car, or a two axled four - wheeled motor truck having a chassis weight of less than two thousand pounds when required and actually used for the transportation of road and bridge laborers and their hand tools and for the distribution of cinders and patching material from a stock pile, as the auditors shall determine and approve; but no supervisor shall receive compensation as a superintendent or roadmaster for any time he spends attending a meeting of supervisors. 65 P.S. $65515, as amended Act 68, 1985. In reference to the meetings for which supervisors may receive compensation, the code further provides as follows: The township supervisors shall meet for the transaction of business at least once each month, at a time and place to be fixed by the board, but they shall not be paid for more than sixteen meetings in any one year, except in any township where, on account of the exercise of governmental functions other than those relating to roads, more meetings are necessary, in which case, the number of meetings for which the supervisors may be paid may be increased to any number, not exceeding fifty meetings in any year which shall include hearings by aggrieved parties under the Pennsylvania Sewage Facilities Act and other hearings of a judicial or quasi - judicial nature. Two members of any board of supervisors consisting of three members shall constitute a quorum and three members of any board of supervisors consisting of five members shall constitute a quorum. Except as otherwise provided in this act, an affirmative vote of a majority of the entire board of supervisors shall be necessary in order to transact any business. Necessary expenses incurred in such meetings, including office rent, stationery, light and fuel, shall be paid out of the general township fund. 53 P.S. $65512. As can he seen from the foregoing, the compensation to be paid for a supervisor who is not otherwise employed by the township is strictly regulated by the Second Class Township Code. A supervisor may only receive compensation as set forth above for supervisor meetings regarding the transaction of township business. The type of meeting for which a township supervisor may be compensated must be one at which official township business is transacted. Additionally, the township code provides for compensation at the specific hearings outlined in $65512, above. The code does not appear to permit the compensation of a township supervisor for attending other types of meetings. Mr. George M. Schroeck December 17, 1985 Page 4 Thus, if the township supervisors were to award to themselves compensation for attendance at meetings that are not official township meetings of the board of supervisors, such would violate the provisions of the State Ethics Act as such payment would not constitute compensation provided by law. We note that the above interpretation of the Second Class Township Code is a view that has also been expressed by the State Association of Township Supervisors which specifically indicated that supervisors may not be compensated for meetings with engineers, solicitors, planning commissions, authorities, or recreation boards. See Township News, May, 1985 P. 66. Regarding your question as to what compensation the supervisors may receive, the township code sets forth clearly when supervisors may receive compensation other than set forth as above. Generally, township supervisors may be employed by the township as a roadmaster, laborer, or secretary /treasurer. 53 P.S. 565410. The compensation to be paid to supervisors working in such positions is to be fixed by the township board of auditors. 53 P.S. 565515; 565531; 565540. Township supervisors may not receive any other compensation except as provided above. This concept has been upheld by various courts in the Commonwealth. In Coltar v. Warminster Townshi , 8 Pa. Commw. 163, 302 A.2d 859, (1973), the Commonwealth Court of ennsy vania held that a second class township supervisor may not appoint himself to positions other than those set forth in the township code (roadmaster, laborer, or secreatary /treasurer), and receive compensation therefore. See also Conrad v. Exeter Township, 76 Berks L.J. 2p. 7 (1983). It is clear, therefore, that the duties for which a township supervisor may be compensated Lis strictly regulated by the township code, and when performing in the positions set forth in the code, the supervisors pay must be specifically set forth by the township board of auditors. Finally, with specific reference to your question as to what compensation a supervisor may receive for attending the township association state conventions, your attention is directed to 53 P.S. 565612. That section provides for the payment of certain expenses to each delegate who attends the state association convention meeting. That provision of law allows supervisors to be paid an amount "not exceeding S75 per day." The Commission has recently determined that language similar to that set forth in the township code, (See County Code 16 P.S. 5443) indicates that officials are only entitled to receive expense allowances as actually incurred up to and not exceeding the amount set forth in the code. Any funds in excess of this amount received and retained by said officials through their official positions would constitute financial gain other than the compensation provided for by law. See Rigier, 85 -020. Mr. George M. Schroeck December 17, 1985 Page 5 Conclusion: Township supervisors are public officials as that term is defined in the State Ethics Act. The State Ethics Act prohibits such officials from using their public position in order to obtain any financial gain other than the c anpsenation provided for by law. Compensation provided for by law for township supervisors is specifically set forth in the township code, and as such, these officials must comply with that code as set forth in the foregoing advice. 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 w i l l 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. JJC /rdp Sincerely, 4 / ohn J. ontino Gener Counsel