HomeMy WebLinkAbout86-598 JulianMs. Audrey Julian
R.D. #1, River Hill
Monongahela, PA 15063
Re: Township Secretary, Receipt Hospitalization Benefits, Spouse Township
Supervisor
Dear Ms. Julian:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
September 4, 1986
ADVICE OF COUNSEL
86 -598
This responds to your letter of August 8, 1986, wherein you requested the
advice of the State Ethics Commission.
Issue: Whether a township secretary may receive township benefits when her
husband is a township supervisor.
Facts: As the township secretary, in Forward Township, Allegheny County,
Pennsylvania, you have requested the advice of the State Ethics Commission
regarding a situation in which you are currently involved. You advise that
all of the township employees are currently covered by a township
hospitalization plan. This plan is available for all full -time employees.
You advise that you are such a full -time employee. The plan that is available
to the full -time employees has been approved and awarded to the employees by
the township board of supervisors. Your husband serves-on the township board
of supervisors. You have requested the advice of the State Ethics Commission
as to whether the township supervisors may provide you coverage under the same
plan that is currently available to other full -time employees of the township.
You have requested the advice of the State Ethics Commission in relation to
this situation.
Discussion: As a township secretary, we will assume that you are a public
employee within the purview of the State Ethics Act and, therefore, subject to
the requirements of that law. 65 P.S. .5402. As such, your conduct must
conform to the requirements of the State Ethics Act.
Ms. Audrey Julian
September 4, 1986
Page 2
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).
Within the above provision of law, no public official may use their public
position in order to obtain any financial gain other than the compensation
that is provided for by law. Confidential information obtained in a public
position may not be used for similar purposes. In the instant situation, you
would not be participating in any of the township's decisions to award
hospitalization or other insurance coverage to you. As such, as long as you
have met the criteria that has been established by the township board of
supervisors for the receipt of such compensation, then your receipt of that
compensation would be provided for by law and there would be no use of public
office on your part if your were to receive these benefits. Such
compensation, however, must be fixed for you by the township board of
supervisors, as only that body may fix the compensation of the township
secretary. 65 P.S. §65540.
i
In the instant situation, however, this is complicated by the fact that
your husband is a member of the township board of supervisors. It is that
board, of course, which must fix as part of your compensation, the benefits to
which you refer in your letter of request. This fact alone, however, would
not result in a prohibition on your securing of the benefits. The only
requirement, in the instant situation, would be that your husband could not
participate, to any extent, in the board of supervisor's consideration and
decisions as to whether these benefits should be extended to you in your
current position as secretary. Your husband's abstention, in this respect,
however, must be publicly noted and appropriately recorded in the township
minutes. In addition to the foregoing, we note that an additional problem
develops by the fact that the coverage which you are seeking will include
dependency vrovisions. Thus, your husband who is a township supervisor, would
in effect be receiving hospitalization coverage at the township's expense.
Generally, this Commission has ruled, in the past, that a township supervisor
who is not a full -time working supervisor may not receive at the township's
expense, hospitalization or other insurance benefits. See, Krane, 84 -001,
Cowie, 84 -010. Generally, these decisions were based upon the fact that the
Second Class Township Code provides a statutory salary for township
supervisors who serve only in that capacity. Township supervisors who are
Ms. Audrey Julian
September 4, 1986
Page 3
full -time employees of the township in authorized positions, such as
roadmaster, superintendent, laborer, and secretary /treasurer, are allowed to
receive additional compensation but only as fixed by the township board of
auditors. See, In Re: Muncy Creek Township Auditors Report, 16 Lycoming
Rep. 159, (1985); Conrad v. Exeter Township, 27 D & C 3d 253, (Berks County
1983). We are thus presented with the situation whereby your husband, as a
township supervisor, if he is not employed by the township as a full -time
employee, would be receiving at the township's expense through you,
hospitalization coverage to which he would otherwise not be entitled. In the
event that your husband is not a full -time employee or in the event that the
auditors have not fixed, as part of his compensation, the hospitalization
coverage in question, he would be receiving indirectly that which he would not
be allowed to receive directly. This, of course, is based upon the assumption
that he is not a full -time employee or that even if he is a full -time
employee, the auditors have not yet fixed this benefit as part of his
compensation. Thus, it is advised that while you may be eligible for
insurance coverage, such coverage should not include a dependency provision
for your spouse. There would, however, be no prohibition on the dependency
provisions including your children if such is otherwise permitted under the
township plan. Once again, your husband must abstain in the township's
consideration and decisions regarding this matter.
Conclusion: A township secretary may receive township provided for
hospitalization benefits if such are provided for as part of the compensation
fixed by the township board of supervisors. ,This is so even where the
township supervisor is the spouse of the secretary. This supervisor, however,
must not participate in the township's decision to award this compensation to
his spouse. Such abstention must be publicly noted and recorded.
Additionally, if the township supervisor serves only as a supervisor or if the
township supervisor is employed by the township but the auditors have not
fixed insurance benefits as part of his compensation, the coverage for the
spouse must not include dependency provisions covering the supervisor. Such
plan may, however, include dependency provisions for children if such is
permitted by the township plan.
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.
Ms. Audrey Julian
September 4, 1986
Page 4
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 ncerel
n J. no
Gener• ounsel