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HomeMy WebLinkAbout86-637 MartinEdwin J. Martin, Esquire Solicitor Forest Hills Borough 2008 Law & Finance Building Pittsburgh, PA 15219 Dear Mr. Martin: Mailing Address: STATE ETHICS COMMISSION P.O. BOX L1470 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 16, 1986 ADVICE OF COUNSEL Re: Borough Councilmembers, Group Insurance Benefits 86 -637 This responds to your letter of November 24, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether borough councilmembers may participate, at their own expense, in a borough group insurance program within the purview of the State Ethics Act. Facts: You have been requested by the Borough Council of Forest Hills to request the advice of the State Ethics Commission in relation to the above issue. You advise that the members of borough council are considering participating in the borough group insurance program at their own expense. You indicate that you have reviewed prior opinions of the State Ethics Commission and have concluded that as long as there is no additional costs to the municipality, there would be no prohibition upon these public officials participating in such a program. You have requested the advice of the State Ethics Commission in relation to this issue. Discussion: Members of borough council are clearly public officials as that term is defined in the State Ethics Act. 65 P.S. §402. As such, their conduct must conform to the requirements of that law. Domalakes, 85 -010. This Commission has considered, on a number of occasions, the issue of whether public officials, at the municipal level, may receive or otherwise participate in the receipt of insurance benefits. Krane, 84 -001; Cowie, 84 -010; Mlakar, 84 -011; Domalakes, 85 -010. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Edwin J. Martin, Esquire December 16, 1986 Page 2 This Commission has considered the above issue within the purview of Section 3(a) of the State Ethics Act, which 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). Our analysis, in this respect, centers upon the issue of whether insurance benefits of the type herein question, would be a financial gain to the public official and, if so, whether such is part of the compensation that is provided for by law. Generally, this Commission, as well as a number of court decisions, have now determined that such benefits are indeed a financial gain. Krane, 84 -001, Conrad v. Exeter Township, 27 D & C 3d 253, (1983); Synoski v. Hazel Township, Pa. Commw. Ct. , 500 A.2d 1282, (1985). The only issue, therefore, that the Commission is generally called upon to resolve in such a situation, is whether the receipt of such benefits would be part of the compensation provided for by law. In order to make such a determination, this Commission must review the pertinent enabling legislation for the municipal body on which the public official serves. That enabling legislation, generally, sets forth that compensation which is to be provided for to the officials of that municipality. In the instant situation, the compensation to be provided, to borough officials, is generally set forth in the Borough Code. We have analyzed this situation, on several occasions, most recently in Domalakes, 85 -010. We, therefore, will not reiterate herein all of the provisions of the Borough Code relating to the receipt of compensation for borough council persons and other borough officials. Generally, a review of the Borough Code clearly indicates that the purchase of insurance, for borough employees, is permitted. See 53 P.S. §46202(37). In relation to borough officials, however, the Borough Code does not provide for the receipt of insurance benefits for such public officials. As such, the receipt of such benefits, if provided for through municipal funding, would be the receipt of a financial gain that is not part of the compensation provided for law. This Commission, however, has, in the past, indicated that there would appear to be no prohibitions upon a public official's participation in a group insurance program if such participation was at the expense of the individual public official. See, Domalakes, 85 -010; Krane, 84 -001. Thus, based upon these prior opinions and advices, there appears to be no Ethics Act prohibition upon the participation of borough councilmembers as well as other borough officials in the borough group insurance programs, if said officials provide private funding for their participation therein Edwin J. Martin, Esquire December 16, 1986 Page 3 Conclusion: The State Ethics Act would not prohibit a borough official's participation, at his own expense, in the borough group insurance programs. 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. Since ohn J. .ntin Gene Counsel