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HomeMy WebLinkAbout86-530 RinehartMs. Cheryl L. Rinehart Findlay Township Drawer W Clinton, PA 15026 Dear Ms. Rinehart: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 April 1, 1986 ADVICE OF COUNSEL 86 -530 Re: Township Supervisor, Roadmaster, Participation Group Hospitalization Program - This responds to your letter of March 6, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether township supervisors, who serve as appointed township roadmasters, are entitled to participate in the township's group hospitalization program. Facts: You serve as the secretary of Findlay Township and have, in that capacity, requested the advice of the State Ethics Commission. You have advised that the township supervisors are contemplating appointing one of the township supervisors to serve as the township roadmaster. You have advised that a question has risen as to whether this township supervisor, when so appointed, would be entitled to participate in a group hospitalization program which is paid for by the township. You indicate that the township group hospitalization program covers employees who work for the township. You have requested the advice of the State Ethics Commission in relation to this issue. niscussion: Generally, township supervisors in a township of the second class, are public officials within the purview of the State Ethics Act. 65 P.S. 6402. As such, these individuals must conform their conduct to the requirements of the State Ethics Act. See Sowers, 80 -050. Generally, the State Ethics Act provides as follows: Ms. Cheryl L. Rinehart April 1, 1986 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 on various occasions reviewed the question as to whether township supervisors may receive, at the township's expense, various types of insurance benefits including annuity pension, group hospitalization, life, health, and medical insurance. In relation to these issues, the Commission has previously ruled that non - working elected township supervisors may not receive, at the township expense, these types of benefits within the purview of the above section of the State Ethics Act. The Commission has determined that the receipt of such benefits by a non - working township supervisor would constitute the receipt of a financial gain that is obtained by the public official in his official position and that such is not part of the compensation provided for by law. See Krane, 84 -001; Cowie, 84 -010. Specifically, the Commission made this determination based upon a review not only of the State Ethics Act, but of the Second Class Township Code as well as the Pennsylvania Insurance Code and the various judicial decisions surrounding this issue. Specifically, in relation to non - working supervisors, the Commission noted in the aforementioned opinions that the Second Class Township Code provides for a set statutory salary for individuals who serve as township supervisors only. See 53 P.S. §65515 (as Amended 1985). In relation to the question of whether a township supervisor who is appropriately appointed as an employee of the township, may participate and receive such benefits, this Commission has previously determined that township supervisors, who are employed by the township, in one of the three authorized positions, roadmaster, secretary /treasurer, laborer, would be eligible to receive additional compensation in the form of the benefits set forth above. In order to be compensated as provided for by law, however, such benefits must be fixed affirmatively as part of the supervisor's compensation by the township board of auditors. See Hunt, No. 384 -R; Glova, No. 423 -R. This position has generally been affirmed by various courts that have reviewed this particular issue. See Synoski v. Hazel Township, Pa. Commw. , 500 A.2d 1282, (1985); McCutcheon v. State Ethics Commission, 77 Pa. Comm. 529, 466 A.2d 283, (1983); Conrad v. Exeter Township, 76 Berks L. J. No. 2p. 7, (1983); In re: Appeal of the Auditors Report of Muncy Creek Township, 16 Lycoming Rep. 159, (1985). Thus, insofar as the township board of auditors, affirmatively fixed the township supervisors /employees compensation to include such benefits, then such benefits are part of the compensation provided for by law. Ms. Cheryl L. Rinehart April 1, 1986 Page 3 We do note for the sake of being complete, that township supervisors do not by merely designating themselves as roadmasters, become employees of the township for whom they can adopt such programs. See Hendricks v. East Rockhill Township, 1 D. & C. 3d 763, (1977). Thus, if a township supervisor is appointed roadmaster but does not actually work for the township as an employee, his receipt of such benefits would be questionable. In this respect, the Commission has issued previous opinions and advices indicating that township supervisors, for example, who work on a part -time basis may within the purview of the State Ethics Act receive insurance coverage as set forth above to the extent approved by the auditors. This coverage, however, must bear a reasonable relationship to the functions performed. The Commission has determined, therefore, that such factors to be considered in this respect would include the extent of 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 represents some of the factors that may be considered important in such a situation, such factors wi 11 assist i n determining i f the supervisor is receiving compenati on as provided for by law. (i.e., for actually working). Thus, for example, within this logic and rationale, the Commission has already determined that part -time township supervisors who work for example, forty hours per year, may not receive any benefits at the township's expense as the amount of work performed is not in accordance with the foregoing factors. See Flower, 85 -528; Nanovic, 85 -005. There would be no prohibition on a supervisor's participation i n such programs at their own expense. Finally, in order to be complete, it should be noted that there is currently pending in the Pennsylvania General Assembly proposed legislation that would address these particular issues. See House Bill No. 1295. This Bill, however, is not currently in effect and, thus, you must be guided by the factors set forth above. C. Conclusion: A township supervisor in a township of the second class is a public official within the purview of the State Ethics Act. The State Ethics Act would prohibit a township supervisor who does not otherwise work as an employee of the township from receiving or participating at the township's expense in the township's group hospitalization, life and other insurance programs. A township supervisor, who is appointed as an employee of the township and who actually performs services for the township, may receive such benefits to the extent approved and fixed by the township board of auditors. The township board of auditors in fixing said compensation should consider certain factors if the township supervisor only serves on a part -time basis. Ms. Cheryl L. Rinehart April 1, 1986 Page 4 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 be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Si ncer n . [;o. in General ounsel