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