Loading...
HomeMy WebLinkAbout95-522-S ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 2, 1995 Re: Simultaneous Service, Public Official /Employee, Township, Councilman, Roadmaster. This responds to your letter of March 14, 1995, requested confidential supplemental advice from the Commission. Issue: Whether the Public presents any prohibition or first class township with a serving or being employed as 95 -522 -S First Class in which you State Ethics Official and Employee Ethics Law restrictions upon a councilman of a Plan C form of government from also a township roadmaster Facts: As the Solicitor for A, a First Class Township with a Plan C form of government under Act 62 of 1972, you seek a supplemental advisory opinion to Advice 95 -522. The facts as stated in Advice 95 -522 are assumed to be applicable here. Assuming the township created the position of roadmaster, you ask whether 8 can serve as a salaried township roadmaster when the Township Administrative Code authorizes a council "to appoint individuals as non- professional advisors and liaisons, and to set their compensation as council sees fit." Assuming that he can serve as roadmaster, you further ask whether he would be required to abstain from deliberating and /or voting on his own appointment. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § 5407(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. Confidential Advice, 95 -522 -S May 2, 1995 Page 2 As a councilman for A, B 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. 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. As to the question posed regarding whether a first class councilman may serve as roadmaster or participate in or vote for his own appointment, the Ethics Law would impose the same restrictions and prohibitions as those set forth in Advice 95 -522 which is incorporated by reference and excerpted in part below. Confidential Advice, 95 -522 -S May 2, 1995 Page 3 The Commission has held that a public official may receive only that 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, Hagen, 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 a township councilman 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 of 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 councilman 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 a councilman for a First Class Township, the individual is a public official subject to the provisions of the Confidential Advice, 95- 522 -S May 2, 1995 Page 4 Ethics Law. Section 3(a) of the Ethics Law prohibits a counciima*+ 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 FAX 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. cerely, Vincent . Dopko Chief Counsel