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Home My WebLink About95-584 ShirkKenelm L. Shirk, III, Esquire 115 South State Street Ephrata, PA 17522 -2412 Re: Dear Mr. Shirk: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 20, 1995 Conflict, Public Official /Employee Parties, Municipal Expenditure, Employees, Immediate Family. 95 -584 , Borough, Township, Holiday Compensation, Officials, This responds to your letters of June 20, and 22, 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 public officials of boroughs or townships as to municipality paid holiday parties for the public officials, their immediate family members and the municipal employees. Facts: You serve as Solicitor for a number of boroughs and townships where a common issue has arisen as to which your clients have sought your advice. The issue involves the ability of the municipalities to supply a holiday party for municipal public officials, public employees, and their spouses. It is your opinion that the municipalities may provide holiday parties, properly structured, for municipal employees and their spouses as long as there is general compliance with all applicable law. Your concern is that certain municipal officials are by statute prohibited from receiving compensation. For instance, Planning Commission Members under the Pennsylvania Municipalities Planning Code may not receive compensation. Compensation for Zoning Hearing Board Members and Supervisors is limited to certain amounts under certain circumstances. There is also no authority for any compensation to certain other officials, such as Park and Recreation Board Members. You ask whether municipality paid holiday parties to those officials and their spouses as recipients would be in violation of Shirk, III, Kenelm L., Esquire, 95 -584 July 20, 1995 Page 2 the Public Official and Employee Ethics Law. 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 elected officials for boroughs and townships, the individuals are public officials as that term is defined under the Ethics Law, and hence they 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. Shirk, III, Kenelm L., Esquire, 95 -584 July 20, 1995 Page 3 "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. "Immediate family." A parent, spouse, child, brother or sister. 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(a) of the Ethics Law prohibits a public official from using the authority of office public office or confidential information received by holding a public office for the private pecuniary benefit of the public official, any member of his immediate family, or any business with which the public official or a member of his immediate family, or any business with which the public official or a member of his immediate family is associated. Thus, use of office by a public official to obtain a financial gain /pecuniary benefit which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). As to specific questions you pose, there is no prohibition in Section 3(a) of the Ethics Law as to the expenditure of municipal funds for such activities for its employees. See Jones, Advice 92- 522. However, the State Ethics Commission has cautioned about the prudent use of governmental revenues which have been generated from taxes. Means, Opinion 90 -009. The second issue is whether the public officials, for whom compensation is limited or prohibited by the respective municipal codes, may receive paid municipal holiday parties. The Commission has generally held that although it does not have jurisdiction to interpret municipal codes, Govachini, Opinion 90 -008, the receipt of a pecuniary benefit is considered private and contrary to Section 3(a) of the Ethics Law if such benefit is not authorized in law. Hessinger, Order 931. If a pecuniary Shirk, III, Kenelm L., Esquire, 95 -584 July 20, 1995 Page 4 benefit is not authorized or is prohibited in law, the receipt of that benefit by a public official /employee through the use of authority of office would transgress Section 3(a) of the Ethics Law. Weber, Opinion 94 -005. As to the second question posed, it is clear that compensation does not merely encompass wages but also includes fringe benefits. See Synoski v. Hazle Township, Pa. Commw. Ct. , 500 A.2d 1282 (1985). Therefore, if the receipt of a municipal paid holiday party is not authorized in the respective municipal code, the receipt of such benefit by the public officials under the Ethics Law would be a private pecuniary benefit contrary to Section 3(a) of 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 respective municipal code. Conclusion: Elected township and borough officials are public officials subject to the provisions of the Ethics Law. Subject to the limitations and qualifications noted above, township employees would not be prohibited by the Ethics Law from receiving a municipal paid holiday party. As to the municipal officials, if the receipt of a municipal paid holiday party is not authorized in the respective municipal code, the receipt of such benefit under the Ethics Law would be a private pecuniary benefit contrary to Section 3(a) of the Ethics Law. 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 Shirk, III, Kenelm L., Esquire, 95 -584 July 20, 1995 Page 5 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 FAS 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. cerely, Vvt t Vincent . Dopko Chief Counsel