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Home My WebLink About88-664 MlakarDear Ms. Mlakar: 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 8, 1988 Leslie J. Mlakar, Esquire 88 -664 126 S. Pennsylvania Avenue Greensburg, PA 15601 Re: Public Official /Employee, Solicitor, Receipt of Township Paid Health Benefits This responds to your letter of November 8, 1938 in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any restrictions or prohibition upon a solicitor for a second class township from receiving township paid insurance benefits. FFacts: You advise that you are the solicitor for a second class township in Westmoreland County which is preparing its 1989 b and considering the feasibility of placing you as solicitor on the township health insurance program. You then s -Ice that the foregoing would be in lieu of your normal retainer that you would receive; in the alternative, you would receive a retainer which you would repay to the township as a monthly cost fo: the health insurance program currently in existence in the township. You cite Act 41 of 1988 which relates to limitations as to township paid health care benefits for elected officials and "appointed township officials ". After expressing your view that the above section is inartfully worded, you state that the Act does give you concern regarding an appropriate interpretation thereof. You also reference Dodds, Opinion 84 -011, and conclude that if the commissioners were to pay you a retainer and if you wrote a check back to the township for hospitalization coverage, 1m believe 4- ,: . 1t you ;aculd fall under the guidelines of Dodds, supra, and would in effect be using your own funds to participate in the township plan. As township solicitor you express concern about the legality of such action of the board and indicate that you wish to give the township your best legal advice and do wain your actions to appear as an attempt on Leslie J. Mlakar, Esquire December 8, 1988 Paf,je 2 your part to benefit yourself through such a ruling. You therefore request an advisory opinion as to whether you may participate in this plan either by the township setting this as your retainer or by the township paying your retainer which would be usea to reimburse the township for the cost of health care "enefits. Discussion: In the instant matter it is necessary to preliminarily to determine whether you are a public official or public employee as those terms are defined under the Ethics Act. Sae c; P.S. §402. in this regard, the status of the typical part -time county /municipal solicitor was considered by the Pennsylvania Supreme Court in Ballou v. State Ethics Commission, 4:26 Pa.. 127 (1981). Preliminarily, it should be noted that the 9up -:eme Court only addressed the narrow question as to whether such part -time local solicitors who were on retainer with a governmental body were deemed to be "public employees" as the term is defined under the Ethics Act so as to be required to file the Statement of Financial Interests. After analogizing the position of such solicitors to that of a consultant, the Court concluded that this particular category of solicitor was not a public official /employee under the Ethics Act: "[4] Unlike a public employee, a solicitor has no enforceable right to continue in his position for the tenure of his appointment. Our cases have held that, as a consequence of the solicitor's confidential relationship with the appointing body which he serves, tha solicitor is removable at the will of the appointing power. Even if appointed for a fixed term and salary, the solicitor has no contractual right to recover any resulting loss in compensation. See Snvderwine v. Cralev, Pa. 349, 254 A.ed 16 (1969); Neaf v. Allentown, 424 Pa. 597, 227 A.2d 888 (1967)." "Further, unlike a public official, the solicitor is responsible only to the appointing body,and may act only pursuant to that body's authorization. He owes no independent duties to the public, and exercises none of the powers of sovereignty. In speaking of a county solicitor, this Court has stated: "No delegated exercise serves as discharge functions of government are to him. Nor can he lawfully any powers of sovereignty. He counsel to the commissioners in the of their public duty fi . ;t as any Leslie J. Mlakar, Esquire December 8, 1988 Page 3 privately employed attorney serves his clients. His duties are to advise the commissioners and to represent the county in litigation authorized by them or instituted against the county." "His duties are important in the sense that the advice and actions of an attorney always entail grave responsibility; but they are performed for the board. He has no direct connection with, or responsibility to, the public; he is entirely subordinate to the board; they may follow his advice or disregard it; he cannot control their actions; he cannot perform their duties; his appointment is for no definite term, and he can be recalled at any time; he has no grave and important duties involving a function of government in their performance..." "Commonwealth ex. rel Foreman v. Hampson, 393 Pa. 467, 473 & 474 -75, 143 A.2d 369, 372 & 372 -73 (1958), quoting Alworth v. County of Lackawanna, 85 Pa. Super. 349, 352 (1925). See also, Wiest v. Northumberland County, 115 Pa. Super. 577, 176 A. 74 (1935)." Id. at 134, 135." Assuming that your position is in the nature of the typical part -time solicitor, you as solicitor to a second class township are not considered a public official /employee under the Ethics At based upon the holding in the Ballou, supra. In light of the fact that you are not a public employee /official under the Ethics Act, your second inquiry cannot be addressed since the subsections of Section 3 of the Ethics Act regarding restricted activities only apply to public officials or employees, with the exception of 3(b) which applies to all persons: 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 Leslie J. Mlakar, Esquire Lecember 8, 1938 Peg:: 4 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). Since you are not a public official /employee as those terms a.ce def i.r.ed under the Ethics Act, Section 3(a) of the Ethics Act wcsld n,t prohibit the receipt on your part of township paid health insurance benefits. It should be specifically noted that forecioing does not address the question as to whether you are entitled to these benefits under the Second Class Township Code r ,mr.Qnded in that the propriety of your proposed conduct has c been addressed under the Ethics Act. Similarly, the appi h.ability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been on.$idered in that they do not involve an interpretation of the ':t.? ics a._aclusion: Assuming your position of second class township supervisor is in the nature of the typical part -time solicitor, your are not a public official /employee as that term is defined under the Ethics Act and consequently Section 3(a) of the Ethics A;:t would not prohibit the receipt of township paid insurance benefits on your part. However, this advice does not address the propriety of the receipt of said township paid insurance benefits alder_ the Second Class Township Code since that does not involve an .�. c .ation of the Ethics Act. 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 Commissic•n, 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 ; Finally, if you disagree with this Advice or if you have any reaaoi. to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Leslie J. Mlakar, Esquire December 8, 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 §2.12. S' 1 erely, ork, Vincent J. Dopko, General Counsel