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HomeMy WebLinkAbout18-564 LevinPHONE: 717- 783 -1610 TOLL FREE: 1 -800- 932 -0936 ADVICE OF COUNSEL November 19, 2018 To the Requester: Mr. Michael S. Levin, Esquire Flager & Associates, PC Dear Mr. Levin: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.12a.gov 18 -564 This responds to your letters dated August 14, 2018, and September 11, 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.TS. § 1101 et se q., would impose prohibitions or restrictions upon members of a township council with regard to voting on the enactment of an ordinance or resolution that would allow township council members to participate at their own expense in the township's health insurance plan. Facts; As Solicitor for Bristol Township ( "Township), Pennsylvania, you have authorized by certain Members of Township Council, hereinafter referred to as the "Inquiring Council Members," to request an advisory from the Commission on their behalf. You have submitted facts that may be fairly summarized as follows. The Township is a first class township. The Township offers a health insurance plan to Township employees. The Township does not currently have an ordinance or resolution that would allow Township Council Members to participate in the Township's health insurance plan. The Inquiring Council Members anticipate that they would participate at their own expense in the Township's health insurance plan if a Township ordinance or resolution would permit them to do so. Based upon the above submitted facts, you ask whether the Inquiring Council Members would have a conflict of interest with regard to voting on the enactment of an ordinance or resolution that would allow Township Council Members to participate at their own expense in the Township's health insurance plan. It is administratively noted that: (1) the Township is governed pursuant to the Optional Plan of Government designated as the Council- Manager Plan under the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. § 2901 et seg. (see, Article I, Section 5 -1, subsection A of the Administrative Code of the Township of Bristol, Bucks County, Levin, 18 -564 member 19, 2018 Page 2 Pennsylvania ( "Township Administrative Code "); and (2) pursuant to Article 1, Section 5- 11, subsection A of the Township Administrative Code, "All powers and duties of the Township shall be exclusively vested in and exercised by Council pursuant to the First Class Township Code, except as may otherwise be provided by the Optional Plans Law." Discussion: It is initially oted that pursuant to Sections 1107(10) and 1107(11) of e Ethics Act, 65 Pa.C.S. y§§ 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 truthfully disclosed all of the material facts. As Members of Township Council, the Inquiring Council Members are public officials 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. U) 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 wo 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. 65 Pa.C.S. §§ 1103(a), Q). The following terms related to Section 1103 (a) are defined in the Ethics Act as follows: § 1102. Definitions Levin, 18 -564 N—overnber 19, 2018 Page 3 "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 industry, 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. In each instance of a conflict of interest, the public official/public employee would be required to abstain from participation. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting coECt, 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. Section 56563 of the First Class Township Code, which is relevant to your inquiry, provides the following authority to a township board of commissioners: § 56563. Insurance To ... make contracts of insurance with any insurance company, or nonprofit hospitalization corporation, or nonprofit medical service corporation, authorized to transact business within the Commonwealth, insuring its employes or commissioners, or any class or classes thereof, or their dependents, under a policy or policies of group insurance covering life, health, hospitalization, medical and surgical service, or accident insurance, and may contract with any such company, granting annuities or pensions, for the pensioning of such employes, or any class or classes thereof, and for such purposes, may agree to pay part or all of the premiums or charges for carrying such contracts, premiums, or charges, or portions thereof. The commissioners are hereby authorized, enabled and Levin, 18 -564 November 19, 2018 Page 4 permitted to deduct from the employe's or commissioner's pay, salary or compensation such part of the premium or charge, as is payable by the employe or commissioner, and as may be so authorized by the employe or commissioner in writing. Such insurance shall be uniformly applicable to those covered and shall not give eligibility preference to, or improperly discriminate in favor of, commissioners .... 53 P.S. § 56563. It is noted that generally, Section 1103(a) of the Ethics Act does not prohibit a public official from participating at his or her own expense in the same group health care insurance coverage provided through the governmental body to other eligible participants as long as the public official does not use the authority of his or her public office to obtain such coverage, such as, for example, by taking action to advance, authorize, or approve his or her own articipation. See, Domalakes, Opinion 85 -010; Keiter, Opinion 90 -004; Dawson, Opinion 97 -003; Cheer amT , Advice 04605; Jarvis, ATv—ice 13 -507. It is further noted that Section 55603 of the First Class Township Code provides, in pertinent part, as follows: § 55603. Compensation (a) Elected officers of townships other than tax collectors shall receive such salary, compensation or emoluments of office as may from time to time be fixed by ordinance of the township in accordance with provisions of section 703. (c ) Any charge in salary, compensation or emoluments of office of an elected officer shall become effective at the beginning of the next term of the elected officer. 53 P.S. § 55603. It is additionally noted that Article III, Section 27 of the Pennsylvania Constitution provides: Changes in Term of Office or Salary Prohibited Section 27. No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment. Constitution of Pennsylvania, Article III, Section 27. The Supreme Court of Pennsylvania has held that the above Constitutional prohibition applies to municipal ordinances. See, Buckwalter v. Borough of Phoenixville, 603 Pa. 534, 985 A.2d 728 (2009). Th -Buc wa ter, the Supreme Court app ie the restriction of Article III, Section 27 of the e�nnsyTvania Constitution to a borough ordinance that eliminated compensation for the borough's council members and mayor effective immediately and held that the borough council lacked the authority to change its council members' pay during incumbent council members' terms. Having set forth the above general principles and relevant provisions of law, you are advised as follows. Levin, 18 -564 member 19, 2018 Page 5 As to each of the Inquiring Council Members, you are advised that the receipt by such Inquiring Council Member of an unauthorized increase in salary, compensation, or emoluments during a current term of office would constitute a "private pecuniary benefit" for purposes of applying Section 1103(a) of the Ethics Act. Accordingly, such Inquiring Council Member would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the enactment of an ordinance or resolution that would allow Township Council Members to participate at their own expense in the Township's health insurance plan to the extent that such ordinance or resolution would increase the salary, compensation, or emoluments of the Inquiring Council Member during the Inquiring Council Member's current term of office in contravention of the Township Administrative Code, Section 55603 of the First Class Township Code, and/or Article III, Section 27 of the Pennsylvania Constitution. (It is parenthetically noted that the Commission does not have the statutory Jurisdiction to interpret the Township Administrative Code, the First Class Township Code, and/or Article III, Section 27 of the Pennsylvania Constitution to determine whether participation by a Township Council Member at his or her own expense in the Township's health insurance plan would constitute "salary," "compensation," or "emoluments" of the Township Council Member). Act. The propriety of the proposed conduct has only been addressed under the Ethics Conclusion: The Members of Township Council for Bristol Township ("Township , Pennsylvania, on whose behalf you have inquired, hereinafter referred to as the "Inquiring Council Members," are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et se-q. Based upon the submitted and administratively noted facts that: (1) the Townsh—ip is a first class township; (2) the Township offers a health insurance plan to Township employees; {3) the Township does not currently have an ordinance or resolution that would allow Township Council Members to participate in the Township's health insurance plan; (4) the Inquiring Council Members anticipate that they would participate at their own expense in the Township's health insurance plan if a Township ordinance or resolution would permit them to do so; (5) the Township is governed pursuant to the Optional Plan of Government designated as the Council- Manager Plan under the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. § 2901 et se q.; and �6) pursuant to Article 1, Section 5 -11, Subsection A of the Administrative ode of the ownship of Bristol, Bucks County, Pennsylvania ( "Township Administrative Code' All powers and duties of the Township shall be exclusively vested in and exercised 4y Council pursuant to the First Class Township Code, except as may otherwise be provided by the Optional Plans Law," you are advised as follows. As to each of the Inquiring Council Members, you are advised that the receipt by such Inquiring Council Member of an unauthorized increase in salary, compensation, or emoluments during a current term of office would constitute a "private pecuniary benefit" for purposes of applying Section 1103(a) of the Ethics Act. Accordingly, such Inquiring Council Member would have a conflict of interest under Section 1103(a) of the Ethics Act with regard to voting on the enactment of an ordinance or resolution that would allow Township Council Members to participate at their own expense in the Township's health insurance plan to the extent that such ordinance or resolution would increase the salary, compensation, or emoluments of the Inquiring Council Member during the Inquiring Council Member's current term of office in contravention of the Township Administrative Code, Section 55603 of the First Class Township Code, and /or Article I I1, Section 27 of the Pennsylvania Constitution. (It is parenthetically noted that the Commission does not have the statutory Jurisdiction to interpret the Township Administrative Code, the First Class Township Code, and /or Article III, Section 27 of the Pennsylvania Constitution to determine whether participation by a Township Council Member at his or her own expense in the Township's health insurance plan would constitute salary, compensation, or "emoluments" the Township Council Member). Levin, 18 -564 November 19, 2018 Page 6 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 actual) received at the Commission within thirty (30) days of the date of this Advice pursuant to 59 Pa. Code § 1'3.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (797 - 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, ir , Robin M. Hittie ' Chief Counsel