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Home My WebLink About88-501 SzymanowkiMr. Joseph J. Szymar.jwski McKean Township Supervisor 2739 South Hill Road McKean, PA 16426 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 February 1, 1988 ADVICE OF COUNSEL Ms. Nancy L. Veith 9016 W. Neuburger Road Fairview, PA 16415 88 -501 Albert E. Wehan, Esq. 338 West Sixth Street Erie, PA 16507 Re: Conflict of Interest, Township Supervisor, Township Supervisors as Laborers, Appointment of Non - elected Superintendent or Roadmaster Dear Sirs /Madam: This responds to your respective letters of January 6, 7 and 18, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon township supervisors, who after having been appointed as laborers, employing a non - elected individual as a superintendent or roadmaster. Facts: In your advice requests, you state that the three member board of the township supervisors have been appointed as "laborers" under the Second Class Township Code to work part -time under the direction of either a superintendent or roadmaster who is not an elected official. It is further recited that the following motion was made at the 1/5/88 organizational meeting of the auditors: "At the organization meeting of the township supervisors held on 1/4/88, the supervisors established one district with the township and hired an individual who is not an elected supervisor as superintendent for the township. The supervisors did not appoint themselves as roadmasters or full -time laborers. In their resolution, they may be hired as part -time laborers. Therefore, I make a motion that supervisors working as part -time laborers shall receive $7.25 per hour with no benefits, the same wage they have given the township's part -time laborers pending the auditors' secretary's contacting the State Ethics Commission for the written opinion concerning the legality for employment of elected township supervisors as laborers to work under the direction of a superintendent (not an elected supervisor) on a part -time basis." You then reference Section 514 of the Second Class Township Code as amended and ask whether under the Ethics Act the elected township supervisors may be appointed to serve as laborers and then employ a superintendent or roadmaster who is not an elected official. The auditors also ask a derivative question as to whether the non - elected superintendent may be paid on an annual basis. Mr. Joseph J. Szymanowski Ms. Nancy L. Veith Albert E. Wehan, Esq. February 1, 1988 Page 2 Discussion: The supervisors for McKea that term is defined in the Ethics Act Pa. Code §1.1. As such, the superviso of the Ethics Act and the restrictions supervi sors. n Township are "public official[sl" as . See Volpe, 579 -R; 65 P.S. §402; 51 rs conduct is subject to the provisions therein are applicable to the 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 public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Of course, under this provision, a public official may not use his public position to secure any financial gain for himself or his immediate family unless it is provided for by law. Domalakes, 85 -010. The Commission has determined if a particular statutory enactment prohibits an official from receiving of a particular benefit, then that official's receipt of such a prohibited benefit, in and through his public office, would also be a use of his office in violation of the Act. In this respect, this Commission has been called upon, on various occasions, to determine whether a specific benefit or financial gain is prohibited by law. See, Allen, 86 -518. In order to determine whether a particular benefit or gain is str tly prohibited by law, the provisions of the Second Class Township Code must be reviewed. Mr. Joseph J. Szymanowski Ms. Nancy L. Veith Albert E. Wehan, Esq. February 1, 1988 Page 3 §65514. Road districts; superintendents and roadmasters: This section shall not prohibit the township supervisors from being employed as superintendents or roadmasters, or as laborers, if physically able to work on and maintain the roads. With regard to boards of supervisors which are designated as three - member boards, any supervisor who is to be considered by such a board for a position as a compensated employe of the township, as authorized by this section, shall not be excluded from voting on the issue of such appointment; such action by a supervisor shall be deemed to be within the scope of authority as a supervisor and shall not be deemed to constitute an illegal or an improper conflict of interest. In such cases they shall not employ a superintendent or roadmasters and their compensation shall be fixed as hereinafter provided. 53 P.S. §65514. In the instant situation, although Section 514 of the Second Class Township Code does allow a three - member board of supervisors to serve as laborers, the last sentence of the second paragraph of Section 514 then precludes the supervisors under that situation from employing either a superintendent or roadmasters. Under this provision of law, if the township supervisors were to serve as laborers and then employ a superintendent or roadmaster, they would be taking an action which is not authorized in law and which, in fact, is prohibited by Section 514 of the Second Class Township Code. Further, in that situation, the township supervisors would then be receiving a gain through public office which is not authorized in law because the Second Class Township Code precludes supervisors from serving as a laborers and then employing a superintendent or roadmasters. In that case, the township supervisors would be using public office and receiving something that was not authorized in law. See Shugarts, No. 623. Since township supervisors who are also laborers may not employ a non - elected individual as superintendent, the question as to whether the non - elected superintendent may be paid on an annual basis is moot and need not be addressed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: The three member board of township supervisors of McKean Township are public officials subject to the provisions of the Ethics Act. Under Section 3(a) of the Ethics Act, the township supervisors may not serve as laborers in the township and then hire a non - elected official as a Mr. Joseph J. Szymanowski Ms. Nancy L. Veith Albert E. Wehan, Esq. February 1, 1988 Page 4 superintendent or roadma ster. Since a non - elected superintendent may not be employed under these circumstances, the question of whether such a superintendent could be paid on an annual basis need not be addressed. Lastly, the propriety of the proposed conduct has only been addressed uuder the 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. cc: Ms. Nancy L. Veith Albert E. Wehan, III, Esq. Sincerely, Vincent J. -bopko General Counsel