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