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HomeMy WebLinkAbout91-506 DomalakesMr. John E. Domalakes Rubright, Domalakes, Troy & Miller Law Building P.O. Box 9 Frackville, PA 17931 -0009 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 23, 1991 Re: Conflict, Public Official /Employee, Borough Councilman, Hospitalization Plan, Participation at Own Expense. Dear Mr. Domalakes: This responds to your letter of December 17, 1990, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Public Official and Employee Ethics Law prohibits or restricts a borough councilman from being included in the borough's hospital and medical insurance program if the councilman pays for his coverage under the program. Facts: You are the borough solicitor for the Borough of Mahanoy City, Schuylkill County, Pennsylvania, and have been asked to render an opinion with regard to the above issue in your capacity as the borough solicitor. By your letter dated December 17, 1990, you confirmed that you have been authorized by the borough councilman who desires to participate in the borough - provided . plan, to inquire with the State Ethics Commission as to the legality of the borough councilman's participation at his own expense. You submit that the instant case is different from the cases presented in the State Ethics Commission's opinions in 85- 010 and 90 -004. You note that the issue in this case is whether an elected borough councilman, rather than tax collector, may participate in a borough - provided hospital plan at his own expense. Discussion: The borough councilman for the Borough of Mahanoy City, Schuylkill County, Pennsylvania, is a public official as that term is defined under the Ethics Law, and hence is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: 91 -506 Mr. John E. Domalakes Page 2 Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee 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. "Conflict" or "conflict of interest" 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 or 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /caployee shall solicit or accept any thing of_monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Mr. John E. Domalakes Page 3 In addressing the issue of whether the borough councilman may participate in the borough hospital and medical program at his own expense, we cannot address the question of whether such participation is permissible under Borough ordinances or under the Borough Code, 53 P.S. §45101, et. sea. Since the State Ethics Commission does not have jurisdiction to interpret the provisions of Borough ordinances or the Borough Code, this advice is limited expressly to the propriety of such participation under the Ethics Law. The Commission has reviewed similar questions under the requirements of Section 3(a) of the Ethics Act. In Domalakes, 85 -010, the Commission held that a borough tax collector could participate at his own expense in the borough's group insurance programs. Although Domalakes was issued under former Act 170 of 1978, 65 P.S. §401, et. seq. (amended and reenacted on June 26, 1989 by Act 9 of 1989), which former Act would not apply to this case, the Commission's recent Opinion in Reiter, 90 -004 reached a similar conclusion under Act 9 of 1989. The Commission concluded that a tax collector in a Second Class Township would not be in violation of the Ethics Law by participating at his own expense in the Township Hospitalization Plan. Id. In an advice issued under former Act 170, it was determined that borough councilmen could participate at their own expense in group insurance policies maintained by the borough without being deemed to have transgressed the Ethics Act, where the officials were to contact the insurance carrier themselves and pay all premiums for their coverage themselves. Musto, 84 -583. Although the former Act does not apply to this case, the reasoning set forth in Musto would apply to the circumstances presented in this case. Although participation in group coverage may be deemed a private pecuniary benefit, (See Keiter, 90 -004), given the fact that you have stated that the borough councilman will bear the costs of this coverage, and given the ready availability of group coverage plans, the borough councilman's participation in the borough plans would not appear under the circumstances presented in this case to present a conflict of interest. Lastly, the propriety of the borough councilman's inclusion in the borough's existing hospital and medical insurance program at his own expense has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Borough Code and /or Borough Ordinances. Mr. John E. Domalakes Page 4 Conclusion: A borough councilman for the borough of Mahanoy City, Schuylkill County, Pennsylvania, is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law does not prohibit the borough councilman from participating in the borough's hospital and medical insurance program at his own expense. The propriety of the borough councilman's participation under the Borough Code and /or Borough Ordinances has not been addressed. Pursuant to Section 7(11), 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. 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. VJD /emg incerely, 0 Vincent J. Dopko, Chief Counsel