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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