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HomeMy WebLinkAbout86-511 WeltyGeorge V. Welty, Esquire Law Offices of Flickinger, Flickinger & Welty 300 North Market Street Ligonier, PA 15658 -1233 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 Fehruary 5, 1986 ADVICE OF COI)NSEL 86 - 511 Re: Insurance /Pension Coverage, Part -Time Township Secretary /Treasurer Dear Mr. Welty: This responds to your letter of January 15, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether the board of supervisors, in a township of the second class, may authorize the expenditure of township funds to purchase life, health, and pension insurance for a part -time township secretary /treasurer. Facts: As Solicitor for Fairfield Township, you have requested the advice of the State Ethics Commission regarding the above issue. Fairfield Township is a township of the second class located in Westmoreland County, Pennsylvania. The township hoard of supervisors is currently considering expending township funds for the purchase of life, health, and pension insurance coverage for the appointed township secretary /treasurer. You have indicated that the secretary /treasurer is employed on a part -time hasis and works approximately 20 hours per week. You also indicate that the hoard of supervisors have authorized a salary for the secretary /treasurer for services rendered. The secretary /treasurer is not a memher of the hoard of township supervisors. You have requested the advice of the State Ethics Commission whether there are any prohibitions under the State Ethics Act regarding the supervisor's purchase of insurance for this individual. Discussion: Township supervisors are clearly public officials within the purview of the State Ethics Act, and therefore suhject to the requirements of the Act. 65 P.S. .5401 et. seq.; Sowers, 80 -050. Generally, the State Ethics Act provides as follows: George V. Welty, Esquire February 5, 1986 Page 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). This Commission has, on a number of occasions, previously reviewed questions regarding a township supervisor's receipt of pension, health, medical, and life insurance benefits. Generally, the Commission has ruled that within the purview of the State Ethics Act, township supervisors who are not otherwise employed by the township, as authorized in the Township Code, may not receive these types of benefits as such would be in violation of Section 3(a) of the State Ethics Act. See McCutcheon v. State Ethics Commission, 77 Pa. Comm. 529, 466 A.2d 283, (1983). Krane, 84 -001, Cowie, 84 -010, Nanovic, 85 -005. The Commission, in these matte, has deterni ned that receipt of such benefits by a township supervisor not otherwise employed by the township, would be the receipt of a financial gain other than the compensation provided for by law. The Commission has also determined that the receipt of these benefits by supervisors who are employed by the township would be appropriate under the State Ethics Act as long as such benefits were properly fixed as compensation by the township board of auditors. Additionally, the Commission has also determined that township supervisors who are employed by the township on a part -time basis within one of the positions authorized in the Township Code, may also receive certain insurance benefits under the purview of the Ethics Act. See Nanovic, 85 -005. In that opinion, the Commission determined that a supervisor may, within the purview of the State Ethics Act, receive insurance coverage to the extent approved by the auditors. Such coverage, however, should bear a reasonable relationship to the functions performed. Factors to be considered in this respect, may 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. In that particular case, the Commission determined that the township supervisor would not be eligible to receive any coverage whatsoever under the State Ethics Act in light of the fact that the supervisor worked only 40 hours per year. In the instant situation, the township secretary /treasurer is not a member of the board of supervisors. This individual would not he using her public position in order to obtain any financial gain if she were to receive the types of insurance coverage set forth in your letter of request. The secretary /treasurer does not have the power to approve this coverage for herself and does not have the power to expend township funds for the purchase George U. Welty, Esquire February 5, 1986 Page 3 of such insurance coverage. The ability of the secretary to receive such coverage is specifically left to the discretion of the board of township supervisors who, pursuant to the Second Class Township Code, may fix the compensation to be paid to the township secretary /treasurer. 53 P.S. , 565531, , 565540. Thus, in the instant situation it does not appear as though there would be any violation of the State Ethics Act if this individual were to receive, after approval by the board of supervisors, the coverage as set forth in your letter. This determination, of course, assumes that the township secretary /treasurer is not otherwise related to any of the township supervisors and that there is no other conflict of interest occasioned by her receipt of such benefits based upon factors not set forth in your letter or request. Finally, while this Commission does not have the jurisdiction to advise the supervisors as to the amount of coverage that should be provided to this employee, reference may be made to our opinion in Nanovic, supra, and the various factors that the Commission considered in a similar situation. Conclusion: The State Ethics Act places no prohibition upon the township board of supervisors fixing insurance, medical , and pension, insurance benefits for the township secretary /treasurer, who is not a member of the township board of supervisors and who is not otherwise related to any of the township supervisors. The secretary /treasurer's receipt of such benefits, after approval by the board of supervisors, would not appear to be in violation of the State Ethics Act. 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 w i l l 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. Si nc c n J. Conti General el