HomeMy WebLinkAbout93-563 MummaEarl J. Mumma, III
Juniata Township
R.D. 3, Box 65AA
Newport, PA 17074
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 1x470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1 610
ADVICE OF COUNSEL
May 12, 1993
93 -563
Re: Conflict, Public Official, Township Supervisor, State of
Emergency, Snow Storm, Plowing Roads, Personal Equipment and
Time, Compensation.
Dear Mr. Mumma:
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 a township supervisor
from receiving compensation for using his personal equipment and
his time to plow township roads during a state of emergency
following a blizzard.
Facts: As a Supervisor in Juniata Township, you inquire as to the
procedure to compensate yourself for your time and use of your
personal equipment during a recent snow storm.
During the blizzard of the weekend of March 13, 1993, one of
the Township's trucks became stuck and unable to move. The other
truck was too small to handle the snow. The Township hired six
contractors to assist the Township in plowing and snow removal.
The other two Township Supervisors asked you to use your personal
equipment to assist in opening the roads.
Under normal circumstances, you believe that Supervisors
cannot be paid for using their equipment, but due to the emergency,
the other two Supervisors felt it was acceptable to obtain your
services.
You have submitted a bill to the two other Township
Supervisors but you have asked that the bill not be paid until you
receive an advisory from . this Commission. You have submitted a
copy of your bill and correspondence to the Township dated April 6,
Earl J. Mumma, III
May 12, 1993
Page 2
1993, which documents are incorporated herein by reference. The
bill indicates that you worked a total of 31 hours clearing snow
and plowing roads. The bill also indicates that you charge an
hourly rate of $45.00 per hour for a total cost of $1395.00.
Inquiry is made as to what steps the Township could take to
compensate you for your equipment usage and time during this snow
emergency.
Discussion: As a Supervisor for Juniata Township, 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:
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.
Earl J. Mumma, III
May 12, 1993
Page 3
"Business with which he is associated."
Any business in which the person or a member
of the person's immediate family is a
director, officer, owner, employee or has a
financial interest.
Under Section 3(a) of the Ethics Law quoted above, a public
official may not use the authority of office or confidential
information to obtain a private pecuniary benefit for himself, a
member of his immediate family or a business with which he is or a
member of his immediate family is associated.
Section 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 judgment of the public
official /employee would be influenced thereby.
Section 3(j) of the Ethics Law provides as follows:
Section 3. Restricted activities.
(j) Where voting conflicts are not
otherwise •addressed by the Constitution of
Pennsylvania or by any law, rule, regulation,
order or ordinance, the following procedure
shall be employed. Any public official or
public employee, who in the discharge of his
official duties, would be required to vote on
a matter that would result in a conflict of
interest shall abstain from voting and, prior
to the vote being taken, publicly announce and
disclose the nature of his interest as a
public record in a written memorandum filed
with the person responsible for recording the
minutes of the meeting at which the vote is
taken, provided that whenever a governing body
would be unable to take any action on a matter
before it because the number of members of the
body required to abstain from voting under the
provisions of this section makes the majority
or other legally required vote of approval
unattainable, then such members shall be
permitted to vote if disclosures are made as
otherwise provided herein. In the case of a
three - member governing body of a political
subdivision, where one member has abstained
from voting as a result of a conflict• of
interest, and the remaining two members of the
Earl J. Mumma, III
May 12, 1993
Page 4
governing body have cast opposing votes, the
member who has abstained shall be permitted to
vote to break the tie vote if disclosure is
made as otherwise provided herein.
If a conflict exists, Section 3(j) requires the public
official /employee to abstain and to publicly disclose the
abstention and reasons for same, both orally and by filing a
written memorandum to that effect with the person recording the
minutes or supervisor.
The question you posed has been considered by the Commission
in Courter, Opinion 93 -001. The Commission developed the following
analysis as to the parameters by which a supervisor could be
compensated.
Although the Commission does not have jurisdiction to
interpret the Second Class Township Code, it is necessary to review
that law to the extent that it impacts upon the Ethics Law
regarding the issue of whether the supervisor employees would be
using the authority of office to obtain a private pecuniary benefit
form themselves.
The Second Class Township Code provides in part:
The compensation of supervisors,
when acting as superintendents, roadmasters or
laborers, shall be fixed by the township
auditors either per hour, per day, per week,
semi - monthly or monthly, which compensation
shall not exceed compensation paid in the
locality for similar services, and such other
reasonable compensation for the use of a
passenger car, or a two -axled four - wheeled
motor truck having a chassis weight of less
than two thousand pounds and a maximum gross
weight of five thousand pounds, or a class 2
truck, having a maximum gross weight of seven
thousand pounds when required and actually
used for the transportation of road and bridge
laborers and their hand tools and for the
distribution of cinders and patching materials
from a stock pile, as the auditors shall
determine and approve; but no supervisor shall
receive compensation as a superintendent or
roadmaster for any time he spends attending a
meeting of supervisors.
53 P.S. 565515(a).
Earl J. Mumma, III
May 12, 1993
Page 5
As to the provisions of the Ethics Law, a Supervisor could
receive compensation as to his time and use of private equipment
only to the extent allowable by law. Since the Supervisor is a
working supervisor, his rate of compensation could be no more than
that which has been approved by the Township Auditors.
Assuming that the Township Auditors approved a rate for
supervisors as roadmasters or laborers, it is clear that the
Supervisor would be entitled to that rate for the time expended for
working on the snow plowing or removal during the state of
emergency.
As to the use of the Supervisor's personal equipment, he would
be entitled to compensation under the Ethics Law provided the
equipment is within the categories specified by the Second Class
Township Code and provided "the auditors shall determine and
approve ". The foregoing is a function of the auditors. It is not
the function of the Commission to usurp the statutory duties of the
township auditors. Dice, Opinion 85 -021. Therefore, to the extent
that the compensation is allowable under the Second Class Township
Code and is approved by the auditors, the Ethics Law would not
prohibit the receipt of such compensation. Means, Opinion 90 -007.
Parenthetically, it is noted that if the auditors have not
made such approval, such an "after the fact" approval in the same
year would not be prohibited by the Ethics Law given the
extraordinary circumstances present in this case. Therefore, the
rate of compensation as set by the auditors, before or after the
state of emergency, would be allowable under the Ethics Law.
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 Second Class Township Code.
Conclusion: As a Supervisor for Juniata Township, Perry County,
Pennsylvania, you are a public official subject to the provisions
of the Ethics Law. Township supervisors who are working
supervisors may be compensated for their personal time working on
clearing township roads during a state of emergency after a snow
storm at the rate set by the township auditors. You could be
compensated for the use of your personal equipment to the extent
that the equipment is within the types authorized by the Second
Class Township Code and approved by the auditors. 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