HomeMy WebLinkAbout87-516 SzymanowskiJoseph J. Szymanowski
McKeen Township Supervisor
2739 South Hill Road
McKean, Pennsylvania 16426
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
February 24, 1987
ADVICE OF COUNSEL
87 - 516
Re: Township Supervisor, Compensation
Dear Mr. Szymanowski:
This responds to your letter of January 17, 1987, wherein you requested
the advice of the State Ethics Commission.
Issue: You have requested advice as to whether a township supervisor may
receive certain forms of compensation in his position as a supervisor and for
serving as a township roadmaster. The specific questions that have been posed
will be addressed in the body of this advice.
Facts: You advise that you are currently serving as a member of the township
board of supervisors in McKean Township, Pennsylvania. You have requested the
advice of the State Ethics Commission regarding what compensation may be
provided to you in your capacity as supervisor and as an appointed township
roadmaster. You've requested advice in relation to three specific questions.
These questions are as follows:
1. May a township supervisor be paid overtime or premium pay in his
position as roadmaster for work performed over 40 hours in a week
where the township auditors have set only a monthly salary without
mention of overtime.
2. As a township supervisor and appointed roadmaster, may your accept
compensation for the use of your vehicle in the course of the
township business when township auditors have not set such
compensation as part of your financial remuneration.
3. As a township supervisor may you receive benefits such as pension,
vacation time, hospitalization and life insurance granted to other
full -time employees when the township auditors have not set such as
part of your compensation.
Joseph J. Szymanowski
February 24, 1987
Page 2
Discussion: As a township supervisor in a township of the second class, you
are a public official as that term is defined in the State Ethics Act, 65 P.S.
§402. As such, your conduct must conform to the requirements of that law.
Sowers, 80 -050; Welz, 86 -001. 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).
Within the above provision of law, this Commission has reviewed a number
of situations, in the past, regarding what township supervisors may receive
through their public position in accordance with the above. Generally, the
Commission has ruled that township supervisor may not approve or accept, in
their official positions, any financial gain for themselves that is not in
accordance with the compensation provisions promulgated by the general
assembly in the Second Class Township Code.
The Second Class Township Code provides that a township supervisor shall
receive compensation for serving in his elected position. The salary to be
paid to such a public official is specifically enumerated in the Second Class
Township Code. 53 P.S. §6551 as amended, Act 68, 1985. The above provision
of law provides as follows:
Compensation of Supervisors -- Supervisors may receive from the general
township fund, as compensation, an amount fixed by ordinance not in excess of
the following:
Township Population
Not more than 4,999
5,000 to 9,999
10,000 to 14,999
15,000 to 24,999
25,000 to 34,999
Annual Maximum Compensation
Fifteen hundred dollars
Two thousand dollars
Twenty -six hundred dollars
Thirty -three hundred dollars
Thirty -five hundred dollars
Joseph J. Szymanowski
February 24, 1987
Page 3
Such salaries shall be payable monthly or quarterly for the duties
imposed by the provisions of this act. The population shall be determined by
the latest available official census figures. The compensation of
supervisors, when acting as superintendents, roadmasters or laborers, shall be
fixed by the township auditors either per hour, per day, per week,
semi - monthly, which compensation shall not exceed compensation paid in the
locality for similar services, and such other reasonable compensation for the
use of a passenger car, or a two axled four - wheeled motor truck having a
chasses weight of less than two thousand pounds when required and actually
used for the transportation of road and bridge laborers and their hand tools
and for the distribution of cinders and patching material from a stock pile,
as the auditors shall determine and approve; but no supervisor shall receive
compensation as a superintendent or roadmaster for any time he spends
attending a meeting of supervisors. 65 P.S. §65515, as amended Act 68, 1985.
The township code sets forth clearly when supervisors may receive
compensation other than as stated above. Generally, township supervisors may
be employed by the township as a roadmaster, laborer, or secretary /treasurer.
53 P.S. §65410. The compensation to be paid to supervisors working in such
positions is to be fixed by the township board of auditors. 53 P.S. § §65515;
65531; 65540. Township supervisors may not receive any other compensation
except as provide above. This concept has been upheld by various courts in
the Commonwealth. In Coltar v. Warminster Township, 8 Pa. Commw. Ct. 163, 302
A.2d 859, (1973), the Commonwealth Court of Pennsylvania held that a second
class township supervisor may not appoint himself to positions other than
those set forth in the township code (roadmaster, laborer, or
secretary /tresurer), and receive compensation therefor. See also,
Conrad v. Exeter Township, 27 D & C 3d 253, (Berks 1983). It is clear,
therefore, that the duties for which a township supervisor may be compensated
are strictly regulated by the township code, and when performing in the
positions set forth in the code, the supervisors' pay must be specifically set
forth by the townhip board of auditors.
As can be seen from the foregoing, the compensation that is to be
provided to a supervisor other than that which is statutorily fixed in the
Second Class Township Code, must be approved by the township board of
auditors. Within this rationale, the State Ethics Commission had determined
on a number of occasions that life, medical, and health insurance benefits
that are provided to a township supervisor who also serves in one of the
authorized positions of employment must be affirmatively fixed by the township
board of auditors before such may be obtained by the township supervisor. See
Cowie, 84- 010 -R; Hunt, 384 -R. It is also clear that a township supervisor who
is not serving in one of the positions of employment authorized in the Second
Class Township Code is entirely ineligible to receive these benefits. Thus,
only township supervisors who are otherwise employed by the township may
receive such benefits and only when such has been fixed by the township board
of auditors. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct.
529, 466 A.2d 283, (1982).
Joseph J. Szymanowski
February 24, 1987
Page 4
As a result of the foregoing, if the township auditors have not fixed as
part of the compensation for you as a supervisor /roadmaster, the various items
set forth in your letter of request, than you may not use your position as a
township supervisor to obtain that compensation. Such would be in violation
of the State Ethics Act. We do note that there are appropriate mechanisms
through which a township supervisor may challenge the compensation that has
been fixed for him by the township board of auditors if he believes that such
is not in accordance with the law. See Synoski v. Hazle Township, Pa.
Commw. Ct. , 500 A.2d 1282, (1985).
Conclusion: The township supervisor is a public official within the purview
of the State Ethics Act. As such, he may not use his position to obtain
financial gain other than the compensation provided for by law. The Second
Class Township Code specifically sets forth that township supervisors who
serve only in that position may receive the statutory compensation based upon
the township population. While township supervisors who serve i•n positions of
employment authorized in the code are eligible for additional compensation,
such must be specifically and expressly fixed by the township board of
auditors as part of the compensation to be paid. Any financial gain received
other than as stated and set forth above may 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 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.
Sin
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Act] g General Counsel