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HomeMy WebLinkAbout88-590 CaldwellMr. John T. Caldwell Mount Pleasant Township Board of Supervisors P.O. Box 128 Hickory, PA 15340 Re: Conflict of Interest, Township Supervisor, Compensation from Summer Youth Employment Training Program Dear Mr. Caldwell: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 28, 1988 88 - 590 This responds to your letter of May 20, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon a second class township supervisor from working part -time and receiving compensation from a summer youth employment training program wherein the supervisor would oversee teenagers in a park maintenance and improvement program. Facts: As Vice - Chairman of the Mount Pleasant Township Board of Supervisors, you state that the township is interested in a Summer Youth Employment Training Program (SYETP) which is sponsored by the Washington Greene County Job Training Agency. After noting that the program would run for six to eight weeks and be limited to park maintenance and improvements, you question whether a supervisor could be compensated at the rate set by the township auditors for part -time working supervisors. You advise that you contacted Representatives Sweet's office and that a research analyst Jim Zawacki suggested that you contact the Ethics Commission for advice. You express your view that Sections 514 through 516 of the Second Class Township Code do not specifically address the issue but you believe that the payment for a supervisor for working on this project is a justifiable expenditure on the theory that the work has to be done and it is a township responsibility. You then state that since the payment Mr. John T. Caldwell June 28, 1988 Page 2 to the supervisor for this type of work is not specifically addressed in the above cited. sections, you believe that the payments could be charged to the road maintenance. You then note that the township'; supervisors responsibilities have increased and that the acquisition of parks and recreational facilities have created a need for a supervised maintenance and improvement program. You then express your view that you do not feel that it is an ethical issue if a supervisor would be in a working relationship with teenagers and park maintenance and improvement program or if the supervisor /roadmaster were to supervise the township road crew for park maintenance and improvement work. You conclude by requesting advice from the State Ethics Commission as to whether a township supervisor could then receive payment for supervising these teenagers as to park maintenance and improvements under the Summer Youth Employment Training Program. Discussion: The supervisors of Mount Pleasant Township are public officials within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, their conduct is subject to the provisions of the Ethics Act. 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 or employee 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 or a business with which he is associated. 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). Mr. John T. Caldwell June 28, 1988 Page 3 Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law. Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. As noted above, the State Ethics Commission has determined that unless there is a specific statutory authorization under the Second Class Township Code for a supervisor to receive a gain or expenses or any type of benefit, then the supervisor is not entitled to receive those benefits under Section 3(a) of the Ethics Act. McCutcheon, supra and Yocabet, supra. Specifically, in Neuburqer, Order 596, the Commission determined that the second class township supervisor violated Section 3(a) of the Act when he received payment for certain "administrative" services that were not provided for under the Second Class Township Code. The Commission cited the cases of Coltar v. Warminster Township, Pa. Commw. Ct. 163, 302 A.2d 859 (1973) and Conrad v. Exeter Township, 27 D & C 3d 253 (1983) which held that the compensation for a supervisor is fixed by the township board of auditors and that township supervisors may not receive any other compensation except as so provided. Specifically in the Coltar, case, Commonwelth Court determined that a second class township supervisor could not appoint himself to a position as roadmaster, laborer, or secretary /treasurer and receive compensation therefore. Therefore, since there is no authorization in law for a second class township supervisor to receive payment for supervising teenagers in a park maintenance and improvement program under the Summer Youth and Training Program, the receipt of such compensation would not be authorized and would be prohibited by Section 3(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Supervisors for Mount Pleasant Township are public officials subject to the provisions of the Ethics Act. Under Section 3(a) of the Ethics Act a township supervisor may not receive compensation for supervising teenagers in a park maintenance and improvement program in conjunction with the Summer Youth Employment Training Program since such compensation is not authorized in law and would thereby be prohibited under Section 3(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Mr. John T. Caldwell June 28, 1938 Page 4 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. such. Th.i letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Comraission review this Advice. A personal appearance before the Commission will be scheduled and a former 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 52.12. Sincerely, ci Vincent . Dopko, General Counsel