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HomeMy WebLinkAbout86-502 SiffenMr. Clifton M. Siffin Mead Township R.D. #1, Box 1310 Clarendon, PA 16313 Dear Mr. Siffin: State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108 -1470 January 9, 1986 ADVICE OF COUNSEL 86 -502 Re: Township Supervisors Participation, Insurance Benefits, Employee of Township This responds to your letter of December 17, 1985, wherein you requested the advice of the State Ethics Commission. You have presented three specific questions for a response by the Commission. These questions are as follows: a. May retired township supervisors participate, at their own expense in a township group hospitalization program. h. In a township of the second class, must a township supervisor he appointed as an employee of the township by the other township supervisors or does the election of that supervisor to public office automatically entitle the supervisor to assume the position of employment within the township. c. What, if any, insurance and fringe benefits can he provided, at township expense, to township supervisors serving as part -time employees of the township. Facts: You indicate that you are currently serving as the Chairman of the Roard of Supervisors for Mead Township, Warren County, Pennsylvania. You have contacted the State Ethics Commission in order to ohtain advice in relation regarding various questions regarding employment of township supervisors by the township and the furnishing of township fended insurance and fringe henefits to such township supervisors. Discussion: Township supervisors are public officials within the purview of the State Ethics Act. 65 P.S. MO2. As such, your conduct and the conduct of the other township supervisors must conform to the requirements of the Act. Sowers, 80 -050. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Clifton Si ffi n January 9, 1986 Page 2 Generally, the State Ethics Act provides as follows: Section 3. Restricted activities. (a) No puhlic official or public employee shall use his public office or any confidential information received through his holding public office to ohtain 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 on various occasions reviewed the receipt of group hospitalization, life, health and medical insurance by township supervisors. In relation to these issues. The Commission has previously ruled that non - working elected township supervisors may not receive at the township expense hospitalization, life, health or medical type insurance benefits within the purview of the above section of the Act. The Commission has determined that such receipt by a non - working township supervisor would constitute a financial gain obtained by the public official in his official position other than the compensation provided for by law. See Krane, 84 -001. Cowie, 84 -010. The Commission reached this determination after reviewing the relevant provisions of the Second Class Townhip Code as well as the provisions of the Pennsylvania Insurance Law and the State Ethics Act. The Commission has ruled, however, that under the applicable laws, township supervisors, even non - working supervisors may participate in group insurance plans of the township if such supervisors pay for the premiums of such plans. Thus, there appears to be no prohibitin upon the township board of supervisors al 1 owi ng non - employed township supervisors as well as retired township supervisors from participating at their own expense in township group insurance policies. See Krane, 84 -001; Davis, 84 -012; Domalakes, 85 -010. The Commission has, to this date, issued no rulings that would indicate that retired supervisors may not participate in the plan at their own expense. In relation to your second question, the issue of whether a township supervisor automatically becomes an employee of the township when he is elected supervisor is not specifically a question that can be address under the State Ethics Act. Reference should be made, however, to several cases that have previously held that township supervisors are not employees of the township when they merely act as supervisors and as a result of their election as supervisors. Hendricks v. East Rockhill Township, 1 D & C 3d 763, (1977). In re: Appeal of the Auditors Report of Muncy Creek Township, 16 Lycoming rep. 159, 19255). uonraa v. txeter iownshlp, 76 perks L. J. no. 2 p.7, (1983). From the above line of case, it would appear as though township supervisors are not employees as a result of their election and that some Mr. Clifton Siffin January 9, 1986 Page 3 other activity must occur in order for them to be classified as employees. With regard to the second part of this question, you ask whether a township supervisor must abstain from voting to appoint himself to a position of employment with the township. The Commission has recently addressed the issue of whether a township supervisor may participate in the appointment of that supervisor as the township secretary /treasurer for which said supervisor would be compensated. After a lengthy analysis of the relevant provisions of law, the Commission determined that the member of the board of township supervisors in a township of the second class may not participate or vote to appoint him or herself as the township secretary, treasurer or secretary /treasurer if the supervisor will be compensated for said position. Such actions by a public official, the Commission determined, would be in violation of Section 3(a) of the Ethics Act. The other members of the board of supervisors may, of course, appoint this supervisor to that position and compensation may be paid in accordance with the law. That compensation, according to the Second Class Township Code, would have to be fixed by the township board of auditors. 53 P.S. , $65515. This same rationale would, therefore, apply to'a township supervisor who will be appointed to any other position of employment within the township and allowed by the Second Class Township Code. See King, 85 -025. Your final question is in reference to what insurance and fringe benefits can a second class township furnish to part -time supervisor employees. You also ask whether these benefits must be approved or granted by the township board of auditors. The Commission has specifically addressed the issue of whether township supervisors who are employed on a part -time basis may receive health, life, and other insurance benefits at the township expense. The Commission has determined in that matter that township supervisors may only be compensated for actually performing functions as employees of the township. This compensation, of course, must be fixed by the township hoard of auditors as provided for in the Second Class Township Code. See Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Comm. 52.9, 466 A.2d 283, (1983). The Commission, thus, determined that the township supervisors who work on a part -time basis may, within the purview of the State Ethics Act, receive insurance coverage to the extent approved by the auditors. This coverage, however, must bear a reasonable relationship to the functions performed. The Commission dertermined that factors to consider in this respect would include the extent of the coverage offered to other employees performing similar functions; the percentage of time actually worked by said supervisor in relation to other employees; the type and extent of coverage accorded to others under similar circumstances in the locality; the extent of any co -pay requirement to be imposed upon the supervisor; and the limitation of coverage if apportioned in relation to the percentage of time actually worked. The Commission determined that while the foregoing only represent some of the factors that may be considered important in such a situation, they will assist in determining if the supervisor is receiving compensation as provided for by law. (i.e. for actually working). Thus, within this logic and rationale, the Commission has already determined that part -time township supervisors who work Mr. Clifton Siffin January 9, 1986 Page 4 for example, 40 hours per year, may not receive any benefits at the towhship expense as the amount of work performed was not in accordance with the foregoing factors. See Flower, 85 -528; Nanovic, 85 -005. In order to be complete it should also Ibe noted that the current time a hill regarding the subject of this type of insurance coverage for a township supervisor is currently pending before the General Assembly of Pennsylvania. See House Rill No. 1295. This Bill is not currently in effect and, thus, you must he guided by the factors set forth ahove. Conclusion: As a township supervisor you are a public official within the purview of the State Ethics Act. The State Ethics Act would place no prohibition upon non - employed supervisors or retired township supervisors from participating at their own expense in township group hospitalization programs. Additionally, township supervisors by their mere election do not become or cannot be considered township employees. If elected to a position of township employment by the board of supervisors, a township supervisor may not participate in his own appointment if he is to be compensated for said position. Finally, while township supervisors who are employed on, a part -time basis by the township may receive insurance and fringe benefits, such benefits must bear a reasonable and rational relationship to the actual amount of work performed. 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 will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must he made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJC /sfb Si ncerely, i�John J. • ino Genera Counsel