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HomeMy WebLinkAbout96-500 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 11, 1996 96 -500 Re: Conflict, Public Official /Employee, Township Commissioner, First Class Township, Compensation, Increase, Act 57 of 1995. This responds to your letter of December 8, 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 a township commissioner from voting on an ordinance which would increase the annual salaries of the township commissioners. Facts: As the Solicitor for Township A, a first class township, you request advice on behalf of three members of the five member Board of Commissioners, specifically, Commissioner B, Commissioner C, and Commissioner D. By Act 57 of 1995, the Pennsylvania General Assembly amended the First Class Township Code to provide that township commissioners in townships with a population of 15,000 or more but less than 25,000 may receive an annual salary of $4,125. Act 57 was signed by Governor Ridge on October 31, 1995. It is effective December 30, 1995. Township A has a population of 16,425 according to the 1990 Federal decennial census. At the December 4, 1995 regular public meeting, the Township A Board considered the adoption of an ordinance which would increase the annual salaries of the Township Commissioners from $3,300 to $4,125, the amount authorized by Act 57. You have submitted a copy of the Ordinance which is incorporated herein by reference. The Ordinance was passed by a vote of 4 to 1 with Commissioners B, C, D, and E voting in favor of adoption. Commissioner F voted against adoption. Confidential Advice of Counsel:, 96-500 January 11, 1996 Page 2 You state that Commissioners B, C, and D will be eligible to receive the salary increase commencing in January, 1996 under the authority of §603 of the First Class Township Code since they were reelected to the Board in November, 1995 and will assume a new term of office on the first Monday in January, 1996. Section 603 provides: Elected officers of townships shall receive such salary, compensation or emoluments of office as may from time to time be fixed by ordinance of the township in accordance with provisions of section 703. Any change in salary, compensation or emo uments of office shall become effective at the beginning of the next term of the elected officer. Appointed officers and employes of the township shall receive such compensation for their services as the township commissioners shall prescribe. 53 P.S. §55603 (Emphasis added). At the time they voted on the Ordinance, Commissioners B, C, and D stated that, although they were voting in favor of the Ordinance, they would not accept the increase in compensation during their terms which begin in January 1996 if doing so would constitute a conflict of interest as defined in the Ethics Act. You state that the other two Commissioners are ineligible for the increase during their current terms pursuant to §603 of the Code. Before the vote on the proposed Ordinance, you provided the Board with a non - confidential written opinion pursuant to Section 9(g) of the Ethics Act. You have submitted a copy of your Opinion. You note that the Ordinance would not increase the compensation of any specific commissioner, rather it would increase compensation for the entire Board. You further state that Section 603 of the First Class Township Code requires that salaries be established by ordinance which would mean that no other person or entity could establish the Board's salary except for the Board itself. The first question which you have posed in your request for an advisory is whether it would be a conflict of interest for Commissioners B, C, and D to accept the compensation authorized by Act 57 and the Ordinance and whether such compensation would be considered a private pecuniary benefit under the Ethics Law. You note the legal authority cited in your Opinion which you have submitted, as well as the decision of the State Ethics Commission in McCabe, Opinion No. 95 -001. The second issue which you have presented involves Section 3(j) of the Ethics Law. You state that if Commissioners B, C, and D were to abstain from voting on the Ordinance because of a Confidential Advice of Counsel, 96 -500 January 11, 1996 Page 3 possible conflict of interest, there would not be enough votes to establish a quorum and a majority. You ask whether these Commissioners could accept the increase despite any conflict of interest, since their votes would be necessary to establish a quorum and a majority. 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 Commissioners for Township A, Commissioners B, C, and D 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 minimus 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 Confidential Advice of Counsel, 96 -500 January 11, 1996 Page 4 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. 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 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 Confidential Advice of Counsel, 96 -500 January 11, 1996 Page 5 written memorandum to that effect with the person recording the minutes or supervisor. In applying the above provisions of the Ethics Law to your inquiry, the first issue which you have raised, the question of the propriety of Commissioners B, C, and D receiving the proposed increases to their salaries, relates to Section 3(a) of the Ethics Law quoted above. Where salary increases are provided for ky law and you have indicated that in this case they have been provided for by law -- they do not constitute a private pecuniary benefit. The acceptance by these Township Commissioners of a salary increase which has been authorized by an Act of the General Assembly would not transgress Section 3(a) of the Ethics Law. However, you are cautioned that 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. The Ethics Commission does not have jurisdiction to interpret the First Class Township Code or Act 57 of 1995. Similarly, this Advice does not address the question of whether the receipt of the salary increase would be permissible under Article III, Section 27 of the Pennsylvania Constitution, since the Ethics Commission does not have jurisdiction to interpret constitutional provisions. For your information, Article III, Section 27 of the Pennsylvania Constitution provides as follows: §27. Changes in term of office or salary prohibited No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment. There is some case law which appears to suggest that Pennsylvania courts have interpreted the above Constitutional prohibition to apply to laws of the General Assembly as opposed to ordinances of municipal bodies. However, it is recommended that the Commissioners on whose behalf you have inquired obtain legal advice in that regard. In light of the above analysis, the second issue which you have raised need not be addressed. Conclusion: As Commissioners for Township A, Commissioners B, C, and D are public officials subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, there is no prohibition upon Commissioners B, C, and D from voting for and receiving an increase in compensation which has been authorized by an Act of the General Assembly. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Confidential Advice of Counsel, 9 -500 January 11, 1996 Page 6 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 thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2(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. Inc rely, Vincent J. Dopko Chief Counsel