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HomeMy WebLinkAbout88-659 KuhnsMs. Eleanor Kuhns Box 766, R.D. #1 Shamokin, PA 17872 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 5, 1988 Re: Township Commissioner, Monthly Expenses, Compensation Dear Ms. Kuhns: 88 -659 This responds to your letter of October 29, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any restrictions or prohibition upon a first class township commissioner from receiving $100 per month for expenses. Facts: You state that you are a newly elected Coal Township Commissioner who took office in January 4, 1988. After stating that each commissioner receives $100 per month for expenses without submitting vouchers or documentation, other than signing, a receipt for same, you advise that the above is in addition to the $2,600.00 per year salary. You state that you have received 6 checks and have used same for training seminars and for . attendance at the Pennsylvania Association of First Class Township Commissioners Conference wherein you paid for the room,, meals, registration fee and mileage. You also cite your attendance at a grievance seminar for which you state, you. paid the registration fee, lunch and mileage. After noting that you stopped accepting the money in June because some commissioners at the conference were shocked at your receipt of the $100 per month and questioned its legality, you advise that you raised the matter with your solicitor who stated it was legal. You note that both the President of your Board and four other Commissioners continued to accept the $100 per month expenses.. and Ms. Eleanor Kuhns December 5, 1988 Page 2 that your estimated 1989 budget lists an expenditure for $4,800.00 for the four Commissioners. You conclude by requesting advice as to whether the receipt of the $100 per month is legal and if it is whether you can donate it to the Coal Township Volunteer Fireman for maintaining the fire company. Discussion: As a first class township commissioner for Coal Township you are a "public official" subject to the provisions of the Ethics Act. 65 P.S. §402; 51 Pa. Code X1.1. As such, your conduct ig subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Preliminarily, the authority of the Ethics Commission to issue an opinion /advice regarding a person's duties under the Ethics Act is limited by statute, (65 P.S. 407(9)(i) and (ii)), to those persons who request it relative to their duties. Thus, the Commission cannot issue an opinion /advice to a third party concerning the duties of some other person under the Ethics Act. Further, a reading of Sections 7(9)(i) and (ii) of the Ethics Act makes it clear that an opinion /advice may be given to a person as to a prospective course of conduct. If the activity, in question, has already occurred,the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. Therefore, for purposes of this advice, your action of accepting the expense checks for the six months is past action and will not be addressed in this advice; the advice /opinion mechanism is advisory as to only future prospective conduct. 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). Ms. Eleanor Kuhns December 5, 1988 Page 3 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. In interpreting the above quoted provision, this Commission has on numerous occasions determined that a public official may only receive that compensation or benefits which is specifically authorized in law. The First Class Township Code provides the following compensation for commissioners: §55703. Compensation Each township commissioner may receive a salary, established by ordinance, of not more than fifteen hundred dollars per year in townships having a population of less than five thousand, not more than two thousand dollars per year in townships having a population of five thousand or more but less than ten thousand, not more than twenty -six hundred dollars per year in townships having a population of ten thousand or more but less than fifteen thousand, not more than thirty -three hundred dollars per year in townships having a population of twenty -five thousand or more but less than thirty-five thousand, and not more than four thousand dollars per year in townships having a population of thirty - five thousand or more. Such salaries shall be payable monthly or quarterly for the duties imposed by the provision of this act. The population shall be determined by the latest available official census figures. 53 P.S. §55703. MS. Eleanor Kuhns Derelaor' 5 1988 Page 4 Ftot the above quoted provision of t he First Class Township Code, it is clear that township commissioners may only receive a specified salary as set forth depending upon the given population density of the municipality. There is no provision in law which authorizes township commissioners to receive payment for monthly expenses. Since such monthly expense payments are not authorized ilk law, the receipt of same would be a financial gain other than compensation provided for by law. See Beeler, Order 560 et. seq. wherein this Commission determined that first class township commissioners could not receive township paid insurance benefits because they were not specifically authorized in law. Under' Section 3(a) of the Ethics Act, the first class township commissioner may not receive monthly expense payments since such are not authorized in law and therefore the receipt of such gain would be compensation other than provided by law contrary to Section 3(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under Conclusion: As a township commissioner in Coal Township you are a "public official" subject to the provisions of the Ethics Act. Under Section 3(a) of the Ethics Act you may not receive $100 per month expense payments from the township since that would be compensation which is not provided for by law. 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. 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 Coiltmission review this Advice. A personal appearance before the Ms. Eleanor Kuhns December 5, 1988 Page 5 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 S2.12. Sincerely, Vincent J. Dopko, General Counsel