The URL can be used to link to this page

Home My WebLink About93-507 Confidentialrhi STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 15 1993 93-507 Re: Conflict, Public Official /Employee, Municipal Authority Member, Reimbursement - for Lost Wages. This responds to your letter of December 9, 1992, . in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee.. Ethics Law presents any prohibition or restrictions upon a board member of a municipal authority from receiving reimbursement or payments from the authority resulting from time off and lost wages from the board member's regular employment due to performance of duties for the municipal authority. Facts: As Members of the Board of Directors of the Municipal Authority of Township A, hereinafter "Municipal Authority," which was created and exists pursuant to the Municipality Authorities Act of 1945, you seek a confidential advisory under the Ethics Law. You state that from time to time, you are required to spend time away from your employment and occupations to attend to business of the Municipal Authority. You state that without limiting the generality of the foregoing, you are required to attend collective bargaining sessions; to appear at judicial, administrative and arbitration proceedings to testify an behalf of the Municipal Authority or in response to subpoenas served upon you by adverse parties and to attend seminars and conferences pertaining to the conduct of the Municipal Authority's affairs and the discharge of your duties as Board Members. You want to adopt a resolution permitting you to be reimbursed for any lost compensation when you attend to the foregoing.. A copy of the proposed resolution has been .submitted and is incorporated herein by reference. You also request advice as to the proposed resolution. Di vaittii nt A Member of the Board of Directors for the aforesaid Confidential Advice No. 93 -507 January 15, 1993 Page 2 Municipal Authority, each of you is a public official as that term is defined under the Ethics Law, and hence each of you is 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 official/employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement =of the public official /employee would be influenced thereby. Before applying the above provisions of the Ethics Law to your Confidential Advice go, 93-507 January 15, 1993 Page 3 inquiry, two points must initially be noted. First, your request for "advice" as to the draft tesolntioft is not specific, and you are further advised that it is not the function of this Commission to pass upon drafted resolutions. Second, this Commission may only address questions regarding the duties and responsibilities of public offitialsipublid employees 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 Lau* accords jurisdiction in relation to other provisions of law, then the Commission may be required to review such provisions of law. Confidential Opinicin 90-012, at 5 (Citing ticaer, Opinion 85-020) (Reviewing Municipality 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. HOakiMcCutcheon v. State Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 283 (1983). In this case, the relevant statutory provision to be reviewed is the following ptovision of the Municipality Authorities Act: B. Members_ shall hold office until their successors have been appointed, and May succeed themselves, and, except members of the boards of Authorities organized or created by a school diStrict or school districts, shall receive such salaries as may be determined by the governing body or bodies of the municipality Or municipalities, but none of such salaries shall be increased or diminished by such governing body or bOdies during the term for which the member receiving the same shall have been appointed. . . 53 P.S. §309(B). The Municipality Authorities Act does not appear to tofttaift any exception to the above provision that is applicable in the instant situation. Since the Municipality Authorities Act specifically provides that the governinicL2c2cly (riot the authority board) shall establish salaries, and that those salaries may not be increased or diminished during the term for which a member ia serving, any so called reimbursement or payment to a board member resulting Vet& lost wages ft:ft his private employment would CdtiSitilt ptorlibittid private p@ditiniaty benefit under Section such. Confidential Advice No. 93 -507 January 15, 1993 Page 4 3(a) of the Ethics Law. See, Taylor, Advice 87 -602. 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. Conclusion: As Members of the Board of Directors of the Municipal Authority of Township A, hereinafter "Municipal Authority," each of you is a public official subject to the provisions of the Ethics Law. As Municipal Authority Members, Section 3(a) of the Ethics Law would prohibit you from receiving a reimbursement or payment as a result of lost wages from your private employment due to performance of duties for the Municipal Authority. 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 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, Vincent J. Dopko Chief Counsel