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HomeMy WebLinkAbout86-574 GatesSamuel K. Gates, Esquire 250 York Street Hanover, PA 17331 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 June 19, 1986 ADVICE OF COUNSEL 86 -574 Re: Township Supervisor, Participation Group, Life and Health Insurane Programs Dear Mr. Gates: This responds to your letter of June 5, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether a township supervisor in a township of the second class, may participate in a group, life and health insurance program obtained by the township. Facts: You currently serve as Solicitor for Jackson Township. In this capacity, you have requested the advice of the State Ethics Commission in relation to the above issue. You have advised that the township police officers, through arbitration, were awarded life insurance and health insurance benefits. The police force is not of sufficient size to qualify for a group rate. You indicate, however, if the township supervisors and other employees were included in the plan, a group rate could be obtained for the entire township. You advise that you are aware of the various opinions in relation to a township supervisor's participation in township insurance programs. You have questioned, however, the ability of a township supervisor, who is not otherwise an employee of the township, to participate in the group insurance plan of the township if he reimburses the township for his portion of the insurance premiums. Discussion: A township supervisor, in a township of the second class, is clearly a public official as that term is defined in the State Ethics Act. 65 P.S. .5402. As such, his conduct must conform to the requirements of the Act. Sowers, 80 -050; Welz, 86 -001. Samuel K. Gates, Esquire June 19, 1986 Page 2 Generally, the State Ethics Act provides as follows: 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, on a number of occasions, has previously determined that within the above provision of law, a township supervisor, in a township of the second class, may only receive that compensation which is provided for in the Second Class Township Code. See, McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283, (1982). The Township Code generally provides for a maximum statutory compensation for township supervisors who serve only in that position. 53 P.S. 65. Additionally, while a township supervisor may be employed in other capacities by the township, such as laborer, roadmaster, secretary, treasurer, the compensation to be provided to a supervisor, who serves in such a position, may only be fixed by the township board of auditors. In relation to the foregoing, this Commission has previously determined that health, medical, and pension benefits are a form of compensation which may only be awarded to a township supervisor as provided for above. See, Krane, 84 -001; Cowie, 84 -010. As a result, a township supervisor, who serves only in that capacity, and is not otherwise employed by the township, may not receive at the township's expense, health and life insurance benefits. See, Glova, No. 423 -R ; Hunt, No.384 -R. This position has been uniformly upheld by a number of judicial decisions. Conrad v. Exeter Township, 27 D & C 3d 253, (1983); In Re: Auditors Report of Muncy Creek Township, 16 Lycoming Rep. 159, (1985); Synoski v. Hazel Township, Pa. Commw. Ct. , 500 A.2d 1282, (1985). While it is clear from the above provisions of law that the township supervisors involved herein, may not receive, at the township's expense, the health benefit set forth in your letter, to date there is no case and no Commission opinion which has indicated that a township supervisor may not otherwise participate in a group rate program obtained by the township if the supervisor pays for the premiums for his participation in such program. Previous advices of this Commission have indicated that the State Ethics Act would not appear to prohibit this type of activity. See, Krane, 84 -001; Siffin, 86 -502. As a result, it is advised that at the current time, there is no prohibition to a township supervisor's participation in a health and life insurance program obtained by the township if the township supervisor Samuel K. Gates, Esquire June 19, 1986 Page 3 reimburses the township for the premiums expended on his behalf. It is advised that if the supervisors, in question, do participate in the program as set forth herein, that the procedures for their participation and reimbursement to the township be formulated prior to their actual participation in the program. Additionally, it is advised that the fact that the supervi sors wi 11 be partici pati ng i n the pl an and the fact that they will be reimbursing the township for their share of the premiums, be publicly set forth during a township meeting and appropriately recorded in the township mi nutes. Conclusion: A township supervisor is a public official within the purview of the State Ethics Act. As such, a supervisor may not receive, at the township's expense, health and life insurance benefits if said supervisor only serves in the supervisory capacity. There is no prohibition at the current time' upon a supervisor's participation in a group rate program obtained by the township if the township supervisor reimburses the township for premiums relating to his coverage. The procedures for the supervisor's participation in the program and his reimbursement in the township be established prior to the effective date of the program. Additionally, it is advised that the supervisor's participation in the program and the fact that he will be reimbursing the township, therefore, be set forth publicly and appropriately recorded. 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 nce n nti o Gene Counsel