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HomeMy WebLinkAbout91-598 SeigelMr. Arthur B. Siegel 511 Broad Street P.O. Box 1154 Milford, PA 18337 STATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 31, 1991 , Esquire 91 -598 Re: Conflict, Public Official /Employee, Solicitor, Second Class Township, Township Medical Insurance, Participation at Township Expense, Participation at Own Expense. Dear Attorney Siegel: This responds to your letter of September 30, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon you as a Township Solicitor for a Second Class Township, with regard to your participating in the township medical insurance plan either: as part of the remuneration; as a fringe benefit; or by your paying into the township medical insurance plan. Facts: As a Solicitor for a Second Class Township, you seek the advice of the State Ethics Commission regarding your prospective participation in the Township medical insurance plan. You specifically inquire whether as Solicitor, you may participate in the Township medical insurance plan, either as part of the remuneration, as a fringe benefit, or by your paying into the plan. You note that counties such as Pike County pay the medical insurance for part -time attorneys, and you would like to know whether townships may do so under any one of the above three arrangements. In a telephone conversation with Assistant Counsel for this Commission on October 17, 1991, you clarified that you represent a Second Class Township. You indicated that you are not presently on the Township payroll but submit bills for your services rendered, although there would be some flexibility in structuring your payment arrangement with the Township. It is noted that prior Advices Nos. 83 -586, 88 -660, and 89- 603 have been issued to you on unrelated matters. Mr. Arthur B. Siegel, Esquire October 31, 1991 Page 2 Discussion: As a Solicitor for a Second Class Township, you are a public employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: 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 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. 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 Mr. Arthur B. Siegel, Esquire October 31, 1991 Page 3 official /employee 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. The Commission may only address questions regarding the duties and responsibilities of public officials within the purview of the Public Official and Employee Ethics Law. If, however, certain provisions of other laws impact upon the Ethics Law or the Ethics Law accords jurisdiction in relation to other provisions of law, then the Commission may be required to review such provisions of law. Confidential Opinion 90 -012, at 5 (citing Bigler, Opinion 85 -020) (reviewing Municipal Authorities Act). Accord; Confidential Opinion 91 -001 at 4 (reviewing Second Class Township Code). Under Section 3(a) of the Ethics Law quoted above, the Commission has determined that if a particular statutory enactment prohibits an official's receipt of a particular benefit, then that official's receipt of such a prohibited benefit, in and through the authority of office, would also be in contravention of the Ethics Law. Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983). Although your prospective participation in the Township medical insurance plan would not be prohibited by the Ethics Law in and of itself, there is a very substantial question of whether you could receive Township paid medical benefits under the restrictions of the Second Class Township Code. While 53 P.S. S65713(D) specifically authorizes a Second Class Township to fully or partially pay for medical insurance for supervisors, township employees, and their dependents, there is no specific mention of providing such benefits to the township solicitor. Furthermore, the aforesaid provision is subject to qualification: Elected officials, except township supervisors who are provided for in section 515, and appointed township officials who are not employes of the township shall not be eligible for participation in any life, health, hospitalization, medical service or accident insurance coverage contract paid in whole or in part by the township. . . 53 P.S. 565713(D)(1)(Emphasis added). The obvious issue is whether, under the Second Class Township Code, you as Solicitor would be considered a Township Mr. Arthur B. Siegel, Esquire October 31, 1991 Page 4 "employee" eligible to receive Township paid medical insurance. This Commission does not have the specific statutory jurisdiction to make such a determination. Under the third scenario which you have posed, you would participate in the Township medical insurance program by "paying into" the plan. To the extent any portion of the costs of your participation would be paid by the Township, we again must note that a serious concern exists as to whether you could receive such Township paid benefits under the Second Class Township Code. To the extent you would pay all of the costs associated with your participation in that plan, the Commission has held that certain township officials not eligible to participate in township insurance benefits at township expense could, within the parameters of the Ethics Law, participate in such benefits at their own expense. See, Keiter Opinion 90 -004 and cases cited therein. Such decisions by the Commission have been conditioned upon the assumption that there would be no use of authority of office by such officials to obtain what was clearly a private pecuniary benefit consisting of participation in a group plan at a lower rate than if individual coverage were to be purchased. Id. Similarly, your participation in the Township medical insurance plan would be permissible within the parameters of the Ethics Law if you were to fully bear the expense of your participation. However, this Advice is expressly conditioned upon the assumption that you would not use the authority of your position as Solicitor for the Township to obtain this private pecuniary benefit, whether your participation would be fully or partially at Township expense or at your own expense. You would be required to abstain from any participation whatsoever in the Township's consideration of your inclusion in the Township plan. You would also be required to publicly announce and file a written memorandum with the Township Secretary recording the minutes, setting forth your abstention and the reasons for same in both disclosures. The propriety of the proposed conduct 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 Rules of Professional Conduct. Although certain provisions of the Second Class Township Code have been reviewed, they have not been interpreted. Mr. Arthur B. Siegel, Esquire October 31, 1991 Page 5 Conclusion: As a Solicitor for a Second Class Township, you are a public employee subject to the provisions of the Ethics Law. Your participation in the Township medical insurance plan either fully or partially at Township expense would be permissible under the Ethics Law in and of itself, but a serious question has been noted as to whether you could receive such Township paid benefits under the Second Class Township Code. Your participation in the Township medical insurance plan fully at your own expense would be permissible under the Ethics Law. This Advice is expressly conditioned upon the assumption that you would not use the authority of your position as Solicitor to obtain participation in the plan. You must abstain from any participation in the Township's consideration of your participation in the Township medical insurance plan. The disclosure requirements noted above must be observed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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. such. This letter is a public record and will be made available as 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. Sincerely, V i/frtee/ot 1;bid "do 14, Vincent J. Dopko Chief Counsel