Loading...
HomeMy WebLinkAbout95-573 HunseckerDear Mr. Hunsecker: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 9, 1995 Donald L. Hunsecker 3547 Warmspring Road Chambersburg, PA 17201 95 -573 Re: Conflict, Public Official /Employee, Supervisor, Township, Health Insurance, Non - Employee. This responds to your letter of May 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 on a non - employee township supervisor when the board of supervisors votes on whether to provide health insurance to non - employee supervisors. Facts: You are currently a non. - employee supervisor on the Saint Thomas Board of Supervisors. The board is comprised of three supervisors; one is a township roadmaster who receives health insurance from the township, one is a non - employee supervisor who receives health insurance coverage elsewhere, and the third is you, a non - employee supervisor. During a five year and two month period, you were a township employee and had received health coverage as an employee. At a recent board meeting, one of the supervisors moved to pay 25% of non - employee health insurance benefits; the motion died for lack of a second. Another supervisor subsequently moved to pay 100% of non- employee supervisor health insurance. Although you wanted to second the motion, you hesitated because you were not sure whether you had a conflict of interest due to the direct effect the motion would have on you. You seek advice from the Commission under the Ethics Law and ask two questions. First, you ask whether it is a conflict of interest for you to vote on the health insurance issue. Second, you ask, if it is a conflict of interest for you to vote, may you vote to break a tie. 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 Hunsecker, Donald L., 95 -573 June 9, 1995 Page 2 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. Second, this Commission, in the exercise of its jurisdiction, is limited to making determinations under the Ethics Law. In making such decisions, it is necessary at times to review other laws to determine whether a given benefit is authorized so that we may conclude whether a public official /employee is receiving a vrivate pecuniary benefit contrary to the Ethics Law. However, it is beyond the scope of the Ethics Law and the function of this Commission to make determinations as to other state laws, regulations or Constitution. Accordingly, the scope of our inquiry and our determination is limited to the Ethics Law. As supervisor for Saint Thomas 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 Hunsecker, Donald L., 95 -573 June 9, 1995 Page 3 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. 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. 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 Hunsecker, Donald L., 95 -573 June 9, 1995 Page 4 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 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. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. Although we do not have jurisdiction to interpret the Second Class Township Code as noted above, it is necessary in this case to review provisions of that Code to the extent that it impacts upon the Ethics Law regarding the issue of whether there would be a use of authority of office to obtain a private pecuniary benefit. The Second Class Township Code provides in part as follows: (c) In addition to the compensation authorized under this section, supervisors while in office or while in the employ of the township may be eligible for inclusion in township -paid 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. 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) (emphasis added). The Second Class Township Code permits supervisors to participate in insurance plans paid in whole Hunsecker, Donald L., 95 -573 June 9, 1995 Page 5 or in part by the township provided such plans are uniformly applicable to those covered and do not improperly discriminate in favor of supervisors. See Akerly, Order 976. Therefore, since such insurance is authorized in law, the receipt of that insurance would not be a private pecuniary benefit. Consequently, although participating in deliberations concerning insurance coverage for non - employee supervisors would affect you and would constitute a use of authority of office" under the Ethics Law, your participation would not be a conflict of interest because it would not provide you with a private pecuniary benefit. If, however, the insurance plan is not uniformly applicable to those covered or improperly discriminates in favor of supervisors, your receipt of such insurance would be a private pecuniary benefit and would create a conflict of interest if you participate in the vote. 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 respective municipal code. Conclusion: As a supervisor for Saint Thomas Township, you are a public official subject to the provisions of the Ethics Law. Your participation in deliberations concerning township paid insurance plans that are authorized in law for supervisors is not a conflict of interest under the Ethics Law because such benefits are not a private pecuniary benefit. This determination explicitly assumes that the insurance plan is uniformly applicable to those covered and does not improperly discriminate in favor of supervisors. 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. Hunsecker, Donald L., 95 -573 June 9, 1995 Page 6 Any such appeal must be in writing and must be actually received at the Commission within thirty (30) 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 thirty (30) days may result in the dismissal of the appeal. ncerely, A Vincent "J. Dopko Chief Counsel