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HomeMy WebLinkAbout95-522 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 1, 1995 95 -522 Re: Conflict, Public Official /Employee, First Class Township, Commissioner, Creation of Township Positions of Employment. This responds to your letters of January 10, 1995, and January 18, 1995, 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 the mayor of a first class township with a Plan C form of government as to participation in creating or serving in positions of employment with the township. Facts: As the Solicitor for A, a First Class Township with a Plan C form of government under Act 62 of 1972, you seek an advisory opinion. After referencing the Second Class Township Code which allows for the creation of road districts within the township and the employment of roadmasters for each road district, you note that the Second Class Township Code allows for the employment of a supervisor as roadmaster who would be a compensated employee of the township. Given the current condition of your township roadways which resulted from the severe effects of recent winters, the township executive /Mayor is considering a proposal for the creation of one or more roadmaster positions within the township. Unlike the Second Class Township Code, the First Class Township Code and the applicable provisions of Act 62 are silent on the matter. The Township's Administrative Code, Section 308, does authorize Council to "appoint by Resolution such non - professional advisors and liaisons, as it may from time to time deem appropriate and necessary, and set their compensation." If the Township would create one or more roadmaster positions, the township executive /Mayor or Council may wish to appoint one or more Councilmen to these roadmaster positions as is permitted under the Second Class Township Code. You again reference that the First Class Township Code and Act 62 are silent on the issue of Confidential Advice, 95 -522 March 1, 1995 Page 2 Councilmen being employed by the township they represent. Before taking any action, the township seeks a Commission advisory on the following questions: 1. May the Township create one or more roadmaster positions, similar to those in the Second Class Township, in light of the fact that the appointment of advisors /liaisons are authorized by the Township Administrative Code and in light of the fact that the Code in Act 62 are silent on the issue; 2. If the above is permissible, may the Township employ Members of Council in one or more of the roadmaster positions, as is permitted in the Second Class Township Code, in light of the silence of the First Class Township Code and Act 62 on the issue of Councilmen being employees of the township they represent; and 3. Since the Township Administrative Code authorizes Council to appoint individuals as non - professional advisors and liaisons and to set compensation as Council sees fit, may Councilmen appoint serving Councilmen to such positions that are created by Council and, if so, would the appointed Councilmen be required to abstain from deliberating and /or voting on the appointment. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As the township executive /Mayor for A, the township executive /Mayor is a public official as that term is defined under the Ethics Law, and hence he 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. Confidential Advice, 95 -522 March 1, 1995 Page 3 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. 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. 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. Regarding the three inquires that you have posed, this is to advise that the first two inquires may not be addressed since the scope of the Ethics Law relates to the conduct of public officials; therefore, questions as to the propriety of the actions of a governmental body are not within the jurisdiction of this Commission. As to the third inquiry concerning the propriety of the township executive /Mayor or Councilmembers participating, voting or serving as non - professional advisors or liaisons, this is to advise that the only conduct which will be addressed is the township executive /Mayor in that there have been no authorizations from Members of Council. As to the question posed regarding whether the township executive /Mayor may participate, vote or serve in one of the non- professional employment positions in the township, the full Commission has generally addressed this type of issue. The Commission has held that a public official may receive only that Confidential Advice, 95 -522 March 1, 1995 Page 4 compensation which is specifically authorized in law. To the extent that a public official receives compensation or money which is not specifically authorized in law, the Commission has found that the receipt of such money or such compensation by that public official /employee serving in that position is a financial gain or private pecuniary benefit contrary to Section 3(a) of the Ethics Law. See, Hasten, Order No. 554 -R wherein the Commission determined that a First Class Township Commissioner violated Section 3(a) of the Ethics Law when he received various forms of compensation that were not specifically authorized in the First Class Township Code. In addition, the Commission has held that public officials who receive compensation from employment that is not specifically authorized in the respective municipal code constitutes the receipt of compensation other than provided by law or a private pecuniary benefit, contrary to Section 3(a) of the Ethics Law. See, Painter, Order No. 861, affirmed in part, Rebottini et al v. SEC, _ Pa. Commw. Ct. , 634 A.2d 743 (1993). Therefore, in light of the above, you are advised that the township executive/ Mayor may not receive compensation as to a position of employment in a First Class Township where the Township Code does not specifically authorize such positions of employment. Parenthetically, it must be noted that the references to the Second Class Township Code are immaterial to the situation of the First Class Township. Not only does the Second Class Township specifically authorize positions of employment for township supervisors but the Code also provides for a Board of Auditors which is a separate independent body that sets and approves the compensation for the Supervisors who are employees. While it is true that a first class township may have auditors, these individuals have no parallel oversight function as do the auditors in second class townships. The General Assembly structured that oversight function in the Second Class Township to be consistent with the longstanding common law rule that a public official may not set his own compensation nor may a public official participate in financial matters that he has a direct or indirect interest. To create or serve in such position in a first class township, the executive mayor would be setting his own salary for a position which is not specifically authorized and for which there is no independent fiscal oversight. 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 township executive /Mayor for a First Class Township, the individual is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law Confidential Advice, 95 -522 March 1, 1995 Page 5 prohibits a township executive /Mayor of a First Class Township from serving and obtaining compensation as to a created position of employment in a First Class Township. 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa. Code 513.2(h) . The appeal may be received at the Commission by hand delivery, United States mail, delivery-service, or by FA% transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. \i cerely, C)01tL Vincent J. Dopko Chief Counsel