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HomeMy WebLinkAbout87-628 WassonDavid B. Wasson, Esquire 1706 Fifth Avenue Arnold, PA 15068 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 November 17, 1987 ADVICE OF COUNSEL 87 -628 Re: Conflict of Interest, Township Supervisor, Retiree, Benefits Dear Mr. Wasson: This responds to the letter of October 14, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act imposes any prohibition upon township supervisors who wish to approve Blue Cross /Blue Shield premiums for a retiring supervisor for a period of two years after he leaves public service. Facts: You state that, as the solicitor for Washington Township, you represent both the township supervisors as well as Mr. H. Rugh Joyner who will be retiring as a supervisor on the first Monday in January, 1988. You further state that Mr. Joyner has served as an elected township supervisor for 24 years and that Mr. Joyner has received the Blue Cross /Blue Shield benefits as an elected township supervisor and a township roadmaster, which positions he will hold until his retirement. It is further noted by you that the township supervisors have established employee benefits for retiring road employees for a period of two years after retirement. You state that Mr. Joyner did not receive the benefit of the two year Blue Cross /Blue Shield extension because he was serving as an elected working supervisor and, as such, the Blue Cross /Blue Shield premiums were paid by the township for an elected working supervisor. You conclude by asking whether the Township Board of Supervisors can properly pay, as a retirement employee benefit, the Blue Cross /Blue Shield premiums for Mr. Joyner for a period of two years after his retirement as a township supervisor and roadmaster. David B. Wasson, Esquire November 17, 1987 Page 2 Discussion: As a second class township supervisor for Washington Township, Mr. Joyner and the other supervisors are "public officials" as that term is defined in the Ethics Act. Accordingly, their conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to them. In the instant situation, two separate questions must be addressed relative to the propriety of the proposal to pay the health insurance premiums for a two year period after a working township supervisor retires. The first question concerns whether the township board, exclusive of the supervisor who is retiring, may vote to award the two year retirement benefit to the retiring township supervisor. The second question is whether the retiring working township supervisor may accept the two year retirement benefit. Section 3(a) of the Ethics Act provides: 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). Section 3(a) basically provides that a public official may not use his office to obtain a gain other than compensation as provided for by law for himself or a member of his immediate family. In this regard, Mr. Joyner could neither vote nor participate in the matter as to whether the other township supervisors could vote to award Blue Cross /Blue Shield coverage for Mr. Joyner following the two years after his retirement as a working township supervisor. This Commission has determined that the voting of a public official to give himself a benefit or gain which is not provided for in law constitutes a use of public office to obtain a financial gain which is not compensation provided for by law. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). Thus, if Mr. Joyner participated or voted regarding the payment of Blue Cross /Blue Shield premiums for a period of two years after he would retire, the receipt by him of those benefits would be a gain which would be compensation other than provided for by law and his voting would have been a use of public office to obtain the benefits. See Yocabet v. State Ethics Commission, Pa. Commw. , A.2d , filed at 834 C.D. 1986, by Commonwealth Court on September 18, 1987. However, if Mr. Joyner did not participate in this matter and the other township supervisors would vote to provide the health coverage for the first David B. Wasson, Esquire November 17, 1987 Page 3 two years of retirement, the receipt of those benefits would not be prohibited under the Ethics Act because Mr. Joyner would be receiving those benefits at a time when he no longer would be a public official. Similarly, regarding the remaining township supervisors, exclusive of Mr. Joyner, if those supervisors were to vote to provide this two year health care coverage for Mr. Joyner following his retirement as a working township supervisor, Section 3(a) of the Ethics Act would not prohibit those supervisors from voting to award this benefit to a former working supervisor /public official since those remaining supervisors would not be using their public office to obtain a gain for themselves but rather for some third party. It is assumed, for the purpose of this advice, that Mr. Joyner is not a member of the immediate family of any of the other township supervisors . Therefore, under Section 3(a) of the Ethics Act, if Mr. Joyner would abstain from participating and voting relative to the matter of health care coverage for a period of two years after his retirement, which abstention should be publicly noted and recorded together with the reason for that abstention, the Ethics Act would not prohibit Mr. Joyner from receiving those benefits nor would the Act prohibit the other supervisors from voting on that benefit for Mr. Joyner. Section 3(b) of the Ethics Act provides: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which the supervisors must observe, they must neither offer nor accept anything of value based on the understanding or with the intention that their official judgment would be influenced thereby. It is assumed that such a situation does not exist here. Reference to this Section is added not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. David B. Wasson, Esquire November 17, 1987 Page 4 Lastly, this Commission has only addressed your question under the Ethics Act; it has not considered the applicability of any other statute, code, regulation or ordinance or any other code of conduct other than the Ethics Act. Specifically, not addressed in this advice is the question of whether the township supervisors, excluding Mr. Joyner, may provide this retirement benefit under the Second Class Township Code. Advice regarding the propriety of this activity under the Second Class Township Code must be addressed by the township solicitor since that would not involve any interpretation of the State Ethics Act. Conclusion: As township supervisors, Mr. Joyner and the other supervisors are "public officials" subject to the Ethics Act. As to Mr. Joyner, if he abstains from participating and voting relative to the two year retirement benefit of having paid Blue Cross /Blue Shield premiums and notes his abstention of public record and the reasons for that abstention, the Ethics Act would not prohibit Mr. Joyner from receiving those benefits. Further, the Ethics Act would not prohibit the other township supervisors, excluding Mr. Joyner, from awarding the retirement benefit of having Blue Cross Blue/Shield premiums paid for two years after retirement since those individuals would not be using their public office to obtain a gain for themselves or members of their immediate family. Lastly, it is noted that this advice has only interpreted the Ethics Act and has not considered the applicability of any other statute, code, ordinance, regulation or other code of conduct and specifically has not addressed the Second Class Township Code. 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 requester 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. Sincerely, Vincent . Dopko General Counsel