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HomeMy WebLinkAbout18-548 StullPHONE: 717- 783 -1610 TOLL FREE: 1- 800 -932 -0936 r t}C J� STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 171200400 ADVICE OF COUNSEL August 3, 2018 To the Requesters: Mr. Henry Hoffer Mr. Daniel Pnbisco Mr. Thomas A. Stull, Jr. Dear Gentlemen: FACSIMILE: 717 -787 -0806 WEBSITE: www.ethics.aa.aov s �• This responds to your letter dated June 11, 2018 (postmarked July 10, 2018, and received July 12, 2018- ) by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 P—a-.TS. § 1101 et seq., would impose prohibitions or restrictions upon township supervisors who aTso serve as roadmasters with regard to receiving overtime pay for work performed in excess of 40 hours per week. Facts: You request an advisory from the Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. Each of you is a Supervisor and a Roadmaster for the Township of Donegal ( "Township "), located In Westmoreland County, Pennsylvania. Your compensation as working Supervisors is set by the Township Board of Auditors ( "Board of Auditors "). At the reorganizational meeting of the Board of Auditors on January 4, 2017, the Board of Auditors set the compensation for working Supervisors for 2017. Minutes of the January 4, 2017, reorganizational meeting of the Board of Auditors state, inter alias Discussion on Salary for working supervisors: Vicki made motion to increase wage to $46,000 salary ($22.12 per hour) for year ....$1,000 increase from 2016 .... little over 2% .... Brenda sec. all agreed, of the Janua 4 2017 mars appear in the men Ing minutes as inaica i of the Board of Auditors At the reorganizational meeting of the Board of Auditors on January 3, 2018, the Board of Auditors set the compensation for working Supervisors for 2018. Minutes of the January 3, 2018, reorganizational meeting of the Board of Auditors state, inter alia: "Supervisors wage was discussed for 2018.... Salary will increase by 2 %.... motion by Brenda, seconded by Zane, all agreed." Minutes of the January 3, 2018, Re- Hoffer /Pribisco /Stull, 18 -548 August 3, Page 2 organizational Meeting of the Board of Auditors (Ellipses marks appear in the meeting minutes as indicate . You state that as Roadmasters, you are on call 24 hours per day, and many times you work in excess of 40 hours per week, especially during the winter months. You have not claimed overtime pay for 2017, and you are wondering whether you may claim overtime pay for 2018. Based upon the above submitted facts, you ask whether the Ethics Act would permit you to claim overtime pay for 2018. You express your view that Vaughn, Order No. 1692 of the Commission seems to indicate that The Minimum Wage Act of 1968, 43 P.S. § 333.102 et seq. ( "the Minimum Wage Act "), would permit you to be paid overtime at the rate of one and one -half times your regular hourly rate when you work in excess of 40 hours per week. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1 107('11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. § 1107(10) (11). An advisory only affords a defense to the extent the requester has trut fully disclosed all of the material facts. As a Township Supervisor, each of you is a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 0) Voting conflict. - -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from. voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise pprovided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. Hoffer /Pribisco /Stull, 118-5-418- August Page 3 66 Pa.C.S. §§ 1103(a), Q). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employyee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industrryy, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 11030) of the Ethics Act would require the public official /public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. In applying the above provisions of the Ethics Act to your advisory request; there are factual and legal issues that preclude this Advice from conclusively determining whether you would be entitled to overtime pay - ---and if so, at what rate for work performed in excess of 40 hours per week. Factually, it cannot be determined what exactly the Board of Auditors authorized you to receive. The submitted meeting minutes of the Board of Auditors are ambiguous, and such ambiguity may not be resolved in the context of an advisory opinion under the Ethics Act. Additionally, the Commission lacks statutory jurisdiction to issue advisory opinions interpreting the Minimum Wage Act) Vaughn, sutra —the order referenced in your advisory request —was based upon a Consent Agreement and Stipulation of Findings submitted by the parties and did not constitute an interpretation of the Minimum Wage Act by the Commission. Hoffer /Pribisco /Stull, 18-548 August 3, Page 4 Thus, while you are advised that Section 1103(a) of the Ethics Act would prohibit you from using the authority of your respective public position(s) to obtain overtime pay to which you would not be entitled, this Advice is not able to complete the analysis of your question. that is, this Advice is not able to resolve the factual ambiguities in this matter or to interpret the Minimum Wage Act to determine whether you would be entitled to receive overtime pay —and if so, at what rate —for work performed in excess of 40 hours per week. While the Commonwealth Court of Pennsylvania determined (under a prior version of the Ethics Act) that the Ethics Act did not prohibit township supervisors who were also roadmasters from receiving overtime pay for: (1) distributing surplus food as township employees when they received no more compensation than other road crew employees received, Uremovich v. State Ethics Commission, 566 A.2d 376 (1989), allocatur denied, 525 Pa. 629, 578 A.2d 416 (1990); or (2) their work as laborers at a rate equal to that paid to all hourly -wage township employees where the auditors had set an hourly laborer wage for the supervisors when working as laborers, R. H. v. State Ethics Commission, 673 A.2d 1004 (Pa. Commw. Ct. 1996), the facts that you have submitted apppear to be different from those addressed in Uremovich and R. H. Absent an applicable judicial precedent, this Advice must be limited to advising you generally that he Ethics Act would prohibit you from using the authority of your public position(s) to obtain unauthorized overtime pay. 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. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: Based upon the submitted facts that: (1) each of you is a Supervisor and a Roadmaster for the Township of Donegal ( "Township "), located in Westmoreland County, Pennsylvania; (2) your compensation as working Supervisors is set by the Township Board of Auditors ('Board of Auditors "); y &.3) at the reorganizational meeting of the Board of Auditors on January 4, 2017, the oard of Auditors set the compensation for working Supervisors for 2017; (4) minutes of the January 4, 2017, reorganizational meeting of the Board of Auditors state, inter alia: "Discussion on Salary for working supervisors: Vicki made motion to increase wage to $96,000 salary ($22.12 per hour) for year ....$1,000 increase from 2016 .... little over 2% .... Brenda sec. all agreed" Minutes of the January 4 2017 Re-organizational Meeting of the Board of Auditors); 5) at the reorganizational meeting ot the Board ot Auditors on January 3, 2018, the Board of Auditors set the compensation for working Supervisors for 2018; (6) minutes of the January 3, 2018, reorganizational meeting of the Board of Auditors state, inter alia: "Supervisors wage was discussed for 2018.... Salary will increase by 2 %.... motionbby Brenda, seconded by Zane, all agreed" Minutes of the JanuarV 3 2018 Re- or anizational Meeti.nq of the Board of Auditors; (7) as Roadmasters, you are on call 24 hours per day, and many times you work in excess of 40 hours per week, especially during the winter months; and (8) you have not claimed overtime pay for 2017, and you are wondering whether you may claim overtime pay for 2018, you are advised as follows. As a Township Supervisor, each of you is a public official suNect to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 69 Pa.C.S. § 1101 et sue. In applying the above provisions of the Ethics Act to your advisory request, there are factual and legal issues that preclude this Advice from conclusively determining whether you would be entitled to overtime pay --and if so, at what rate —for work performed in excess of 40 hours per week. Hoffer /Pribisco /Stu[!, 18548 August 3, Page 5 Factually, it cannot be determined what exactly the Board of Auditors authorized you to receive. The submitted meeting minutes of the Board of Auditors are ambiguous, and such ambiguity may not be resolved in the context of an advisory opinion under the Ethics Act. Additionally, the Commission lacks statutory' urisdiction to issue advisory opinions interpretin.9 The Minimum Wage Act of 1968, �3 P.S. § 333.102 et seq. ( "the Minimum Wage Act ). Thus, while you are advised that Section 1103(a) of the Ethics Act would prohibit ou from using the authority of your respective public position(s) to obtain overtime pay o which you would not be entitled, this Advice is not able to complete the analysis of your question; that is, this Advice is.not able to resolve the factual ambiguities in this matter or to interpret the Minimum Wage Act to determine whether you would be entitled to receive overtime pay --and if so, at what rate —for work performed in excess of 40 hours per week. Absent an applicable judicial precedent, this Advice must be limited to advising you generally that the Ethics Act would prohibit you from using the authority of your public position(s) to obtain unauthorized overtime pay. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission Any such appeal must be in writingg and must be actuall received at the Commission within thirty (30) days of the date o this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, M Y� . Hittie Chief Counsel