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HomeMy WebLinkAbout88-650 MarsilioThomas M. Marsilio, Esquire 200 Northeastern Building Hazleton, PA 18201 Dear Mr. Marsilio: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 29, 1988 88 -650 Re: Conflict of Interest, Township Supervisor, Negotiation of Employee Union Contract, Adoption of Contract by Auditors for Supervisors /Employees This responds to your letter of October 4, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any restrictions or prohibition upon township supervisors from negotiating or voting on a union contract for township employees when the auditors traditionally use the union contract to set the supervisor /employee wages. Facts: You state that you are the solicitor for the Township of Butler, in Luzerne County, and you have telephonically advised that you also represent two supervisors who are members of the road crew in the township. You then make inquiry as to whether these two supervisors may negotiate and vote on the union contract in light of the fact that the township auditors traditionally use the union contract to set the wages for the supervisor /employees. Discussion: As supervisors for Butler Township, Luzerne County, the two individuals are "public officials" as that term is defined in the Ethics Act. 65 P.S. S402; 51 Pa. Code X1.1. As such, their conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to them. Thomas M. Marsilio, Esquire November 29, 1988 Page 2 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Section 3(b) of the Ethics Act provides: (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. S403(b). Thomas M. Marsilio, Esquire November 29, 1988 Page 3 Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding -or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced 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. In the instant matter, the two supervisors seek to negotiate and vote on a union contract when they are members of the road crew. In this instance, although they would be negotiating and voting on the contract for the road crew, that contract would not apply to them because they are supervisor /employees whose wages would have to be set by the independent township auditors. Thereupon, if the auditors in making their own independent determination choose to utilize the union contract as a basis for setting the supervisor /employee wages, such action would not be prohibited by the Ethics Act because the situation would exist that the auditors would be making their determination as to setting the salaries for these two working supervisors. In this regard, it is expressly assumed under Sections 3(a) and 3(b) that the two township supervisors have not used public office or confidential information and have not offered anything of value to the auditors relative to the auditors activities in setting the wages for these two supervisors /employees. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As supervisors for Butler Township, the two individuals are public officials subject to the provisions of the State Ethics Act. Subject to the qualifications as noted above, the two supervisors may as members of the road crew negotiate and vote on a new union contract even though the auditors in performing their independent function choose to adopt that contract as a basis for setting the wages for the supervisors /employees. Lastly, the propriety of the proposed conduct has only been addressed under 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. Thomas M. Marsilio, Esquire November 29, 1988 Page 4 such. This 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 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 52.12. Sincerely, Vincent ,f: Dopko, General Counsel