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HomeMy WebLinkAbout91-606 ButtorffMr. Stephen Buttorff R.D. #1 Box 262G Millmont, PA 17845 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 PA 17108- TELEPHONE , E EPHO E�(717) 783 -1610 ADVICE OF COUNSEL December 26, 1991 91 -606 Re: Conflict, Public Official /Employee, Township Supervisor, Laborer, Second Class Township, Township Paid Benefits, Medical Insurance, Compensation, Limited Working Hours. Dear Mr. Buttorff: This responds to your letter of November 5, 1991, in which you requested advice from the State Ethics Commission. by the Issue: Whether a second class aborer township under the supervisor P�lic 0 ficial and township in the capacity of a Employee Ethics Law may participate in the township p aid health insurance plan at township expense if he works a minimum of fifty hours per semi- annual period, which is the minimum number of hours that other employees of the township must work to participate in the plan. Facts: As a Second Class township Supervisor io b for the to Second Cl p ass in Township in Union County, Pennsylvania, employed y opinion t from the capacity of a laborer, you seek an advisory State Ethics Commission concerning your prospective participation in the Township's paid aid grow health insurance plan (Blue Cross /Blue that in Shield) offered by the Township to ormallymest blished that t employees August, 1988, the supervisors eriod hours in a would have to work a minimum of fail health insurance programP You for inclusion in the Township's paid u have b g employed note that in addition to being a Supervisor, yo by the Township as a laborer since prior to arch 3311, annual Youil at le the minimum of Y periods do not greatly although your total hours logged in some p exceed the minimum requirement of fifty hours. Citing 53 P.S. Mr. Stephen Buttorff December 26, 1991 Page 2 Section 65515(c)(1), you state that it would appear that you and your dependents remain eligible for inclusion in the Township's group health insurance program because the above provision of the Second Class Township Code provides that for supervisor /employees to remain eligible for inclusion in such Township paid plans, they must meet the same requirements for participation as other eligible Township employees, and the plan must not improperly discriminate in favor of a supervisor /employee. You feel that the risk to your continued eligibility would be a challenge to the Township's official policy of requiring a fifty hour minimum per semi - annual period as unreasonably low and designed to make supervisors eligible for participation. Nevertheless, any present or future employees, whether or not they were also supervisors, would receive Township paid group health insurance as long as they would log at least fifty hours each semi - annual period. You indicate that according to the Township records, previous Township supervisor /employees, prior to March 31, 1985, were included in Township paid health insurance even though no minimum hours were established. Furthermore, you state that the Township records support the fact that no Township supervisor works full time year round, and that the other present Township employees who are not supervisors also do not work full time year round, but are laid off each year from November through March except for snow removal. You acknowledge that the hourly totals for these non - supervisor employees are quite higher than your own. Finally, you state that you are not interested in the eligibility of any other supervisor /employee or non - supervisor/ employee, but have.only provided the above information to provide a full view and understanding of your situation as it pertains to your request. Discussion: As a Township Supervisor for a Second Class Township in Union County, Pennsylvania you are a public official 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: Mr. Stephen Buttorff December 26, 1991 Page 3 Sectj,on 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 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. It is initially noted that this Advice may only address your prospective conduct in participating in the Township paid health insurance program. Requests regarding past conduct or regarding the conduct of third parties would be beyond the scope of an Advice and could not and will not be addressed herein. The Commission has previously considered similar inquiries. See. Confidential Opinion 91 -001; Means. Opinion 90 -007. Although the Mr. Stephen Buttorff December 26, 1991 Page 4 Commission's inquiry in such cases has been limited to interpreting and applying the Ethics Law, it has nevertheless been necessary to review 53 P.S. Section 65515(c)(1) to the extent that it impacts upon the Ethics Law regarding the issue of whether a supervisor /employee would be using the authority of office to obtain a private pecuniary benefit for himself. Confidential Opinion 91 -001 at 4; Means, Opinion 90 -007 at 4. The Second Class Township Code provides for participation by supervisor /employees in insurance plans as follows: Supervisor- employes and their dependents shall be eligible for inclusion in group life, health, hospitalization, medical service and accident insurance plans paid in whole or in part by the township. No policy of group life insurance shall contain any provision for the accrual or deferral of a cash surrender value, loan value or any other nonforfeitable benefit, in addition to or beyond the face amount of insurance, that shall inure to the benefit of the supervisor, any beneficiary or any other individual having an insurable interest in the life of a supervisor. Such insurance however, may contain a provision that when the insurance, or any portion of it, on a person covered under the policy ceases because of termination of employment or the ,termination of the insured's term of office, such person shall be entitled to have issued to him by the insurer, without evidence of insurability, an individual policy of insurance on any form customarily issued by the insurer at the age and for the amount applied for if: (i) such amount is not in excess of the amount of life insurance• which ceases because of such termination; and (ii) the application for the individual policy is made and first premium .is paid to the insurer within thirty - one days after such termination. Participation by supervisor - employes shall not require auditor approval. Supervisor- employes eligible for inclusion in such plans must meet the same requirements as other employes of the township who are eligible to participate in an insurance plan. Such plans shall not. improperly discriminate in favor of a supervisor - employe. 53 P.S.S65515(c)(1). It is noted that the restrictions of Section 3(a) of the Ethics Law as set forth above prohibit the use of authority of office to obtain a private pecuniary benefit for the public official. In this Mr. Stephen Buttorff December 26, 1991 Page 5 case, you as a supervisor /employee would have been designated in one of the enumerated working positions (laborer) through formal action. In addition, the above provision specifically provides that supervisor /employes are eligible for inclusion in group health, hospitalization, and medical service plans paid in whole or in part by the Township. Under the facts as you have submitted them, the Township paid health insurance program is in this case available to all employees who work a minimum of fifty hours in a semi- annual period. Base upon all of the above and the prior decisions of this Commission, Section 3(a) of the Ethics Law would not prohibit your participation in the Township's group.health insurance program under which you and your dependents would receive, such benefits. You are cautioned that you would be required to work all of the hours which you log. You must exercise caution to recognize the distinction between those duties which relate to that of office - supervisor for which you cannot receive compensation (except as allowed in Section 515(a) of the Second Class Township Code, 53 P.S. Section 65515 and those duties which are encompassed within the duties of a laborer for which you may be compensated as an employee - supervisor. Thus, action on the part of a supervisor to receive compensation as an emp.ovee- supervisor for duties which relate to the position of office - supervisor have been determined to contravene Section 3(a) of the Ethics Act. See. Parish, Order 719. You are further cautioned that because this Commission's jurisdiction is limited to interpreting the provisions of the Ethics Law, this Advice may not and does not offer any interpretation as to whether the receipt of these benefits for such limited working hours would be allowable under the Second Class Township Code. In particular, this Advice does not address the question of whether such limited working hours would improperly discriminate in favor of a supervisor - employee under the Second Class Township Code. You are reminded that public office is a matter of public trust, and that any effort to realize personal financial gain through office is considered a violation of that trust. 65 P.S. §401. The health insurance benefits in question are paid for by tax revenues from the Township which you represent. Under the circumstances of limited working hours for supervisor /employees, the Commission has made such public officials aware of the utilization of tax revenues for the payment of such a program relative to their very limited working hours. In Means, Advice 90 -007, it was suggested that the supervisor /employees should consider whether the better practice would be to forgo such benefits where they would only be working eight hours a year as roadmasters. Mr. Stephen Buttorff December 26, 1991 Page 6 The propriety of the proposed conduct has only been addressed under the Ethics Law. Conclusion: As a Township Supervisor for a Second Class Township in Union County, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit you from participating in the Township's paid group health insurance program under which you and your dependents would receive such benefits, where you would be logging as a Township laborer the minimum number of hours required for Township employees to participate in the plan. The issue of whether the receipt of the group health insurance benefits based upon limited working hours of supervisor /employees constitutes an improper discrimination under the Second Class Township Code is not addressed. 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. 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 S2.12. ncerely, Vincent J. Dopko Chief Counsel