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HomeMy WebLinkAbout93-555 TaylorJames A. Taylor, Esquire Murrin, Taylor, Flach & Horan 110 East Diamond Street Butler, PA 16001 -5999 You have been Township to opine insurance benefits State Constitution Law. STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 30, 1993 93 -555 Re: Conflict, Public Official /Employee, Township Supervisor, Employee Supervisor, Township Paid Insurance Benefits. Dear Mr. Taylor: This responds to your letter of April 13, 1993, 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 second class township non - employee supervisors obtaining township paid insurance benefits. Non- Facts: As Solicitor for Oakland Township and Center Township, two Second Class Townships located in Butler County, Pennsylvania, you request an advisory from the State Ethics Commission. The Pennsylvania Legislature recently passed Act 157 of 1992 which authorizes non - employee supervisors to receive township paid insurance benefits. You are also aware that Article III, Section 27 of the State Constitution prohibits any increase for compensation of elected officials during their term in office. requested by both Center Township and Oakland as to whether the receipt of township paid would violate Article III, Section 27 of the or the Public Officials and Employees Ethics Based upon the above, you request an advisory from the State Ethics Commission as to the propriety of the above proposed action in light of the Second Class Township Code, the Pennsylvania Constitution, and this Commission's rules and regulations. James A. Taylor, Esquire April 30, 1993 Page 2 Discussion: It is initially noted that your request for advice may only be addressed with regard to prospective conduct. A reading of Sections 7(10) and 7(11) of the Ethics Law makes it clear that an opinion or advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion or advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. As a non - employee Supervisor for Center Township or Oakland Township, the Supervisors are public officials as that term is defined under the Ethics Law, and hence they 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 James A. Taylor, Esquire April 30, 1993 Page 3 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 judgment of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. In reviewing the question posed, this Advice is limited to whether the Supervisors may receive insurance benefits under the Ethics Law. Although this Commission does not have the express statutory jurisdiction to interpret the Second Class Township Code, it is necessary in this case to review 53 P.S. 05515 to the extent that it impacts upon the Ethics Law regarding the issue of whether the Supervisors would be using the authority of office to obtain a private pecuniary benefit for themselves. The Second Class Township Code provides for participation by supervisors in insurance plans as follows: (1) Supervisors 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 James A. Taylor, Esquire April 30, 1993 Page 4 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 supervisors shall not require auditor approval. Such insurance shall be uniformly applicable to those covered and shall not improperly discriminate in favor of supervisors. 53 P.S. §65515(c)(1). It is clear that on the face of the above provision that in order for a Center Township or Oakland Township Supervisor to participate in Township paid insurance benefits, the insurance shall be uniformly applicable to those covered and shall not improperly discriminate in favor of supervisors. It is further clear on the face of the above provision of the Second Class Township Code that the types of insurance benefits in which Supervisors and their dependents are eligible to participate are group life, health, hospitalization, medical and accident insurance. There does not appear to be any authorization in the Second Class Township. Code for any other type of township paid insurance for supervisors and their dependents. In considering the above provision to the extent that it impacts upon the Ethics Law, Section 3(a) of the Ethics Law prohibits the use of 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. Section 3(a) of the Ethics Law would not prohibit the Center Township or Oakland Township Supervisors and their dependents from participating in Township paid insurance benefits which would conform to the express requirements of 53 P.S. §65515. A postscript is necessary so that this Advice is not misconstrued. First, as noted above, the Commission's jurisdiction is limited to interpreting the provisions of the Ethics law. Therefore, although you sought an advisory in light of the Second Class Township Code, the Commission's rules and Regulations, and Article III, Section 27 of the Pennsylvania Constitution, this Advice does not and cannot offer any interpretation as to whether the proposed conduct would violate other laws such as the Second Class Township Code or Article III, Section 27 of the Pennsylvania Constitution. The propriety of the proposed conduct has only been addressed James A. Taylor, Esquire April 30, 1993 Page 5 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 question of whether the receipt of such insurance would improperly discriminate in favor of the supervisors or whether the insurance qualifies as to types allowable under the Second Class Township Code. Conclusion: As Township Supervisors for Center Township or Oakland Township in Butler County, Pennsylvania, each Supervisor is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics law would specifically prohibit the Supervisors from using the authority of office to obtain a private pecuniary benefit for themselves where such private pecuniary benefit received would be contrary.to the express requirement of the Second Class Township Code, 53 P.S. 565515. Section 3(a) of the Ethics Law would not prohibit the authorization of Township paid insurance benefits in which the Supervisors and their dependents would participate, as long as those benefits conform to the requirements of 53 P.S. 565515. 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 SI3.2(h). cerely, Vincent J. Dopk Chief Counsel