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HomeMy WebLinkAbout96-566 DeSantisParis J. DeSantis, Esquire DeSantis & Menconi 204 East Broad Street Tamaqua, PA 18252 (Emphasis added). 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 10, 1996 96 -566 Re: Conflict, Public Official /Employee, Township, Sewer Authority, Medical Insurance Benefits. Dear Mr. DeSantis: This responds to your letters of May 1 and May 7, 1996 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 Member of a township sewer authority who is also an employee of the authority with regard to receiving medical insurance benefits paid for by the authority. Facts: As the Solicitor for the Rush Township Sewer Authority (Authority), you request an advisory on behalf of the Authority Chairman. The Chairman has been employed by the Authority as the working manager, to do and perform the Authority's functions in the maintenance and repair of sewage facilities. The Chairman claims that he is entitled to paid hospital and /or medical benefits through the Authority since he is an employee of the Authority. You note that under 53 P.S. §306B(q) of the Municipality Authorities Act of 1945, hospital and /or medical insurance benefits cannot be provided for Authority officials: B. Every Authority is hereby granted, and shall have and may exercise all powers necessary or convenient for the carrying out of the aforesaid purposes, including but without limiting the generality of the foregoing, the following rights and powers: To make contracts with any insurance company, association or exchange or any hospital plan corporation or professional health service corporation authorized to transact business in the Commonwealth of Pennsylvania, insuring or covering its employes and /or their dependents (but not its appointed officers and officials nor their dependents) for hospital and /or medical benefits; .. . DeSantis, 96 -566 June 10, 1996 Page 2 You state that the Authority has been paying for this insurance and a question has been raised as to whether the Chairman is entitled to have that payment made by the Authority. 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. The Chairman of the Rush Township Sewer Authority 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: Sectignlltestrict Activi ies. (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. "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: DeSantis, 96 -566 June 10, 1996 Page 3 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 written memorandum to that effect with the person recording the minutes or supervisor. Having set forth the above provisions of the Ethics Law, your specific question shall now be considered. It would appear that what you are actually seeking is an interpretation of the above provision of the Municipality Authorities Act of 1945. Indeed, it is that Act which provides the benefits which have been authorized by the Legislature. Any application of the Ethics Law to your question necessarily hinges upon the proper meaning of this provision of the Municipality Authorities Act. Specifically, if the Municipality Authorities Act authorizes an Authority Member who is also an Authority employee to receive hospital and /or medical insurance benefits by virtue of the employment status with the Authority, then the Ethics Law will view the receipt of those benefits to be authorized in law and therefore permissible. On the other hand, if the Municipality Authorities Act does not authorize a Member who is also an employee to receive such benefits, the Ethics Law will consider those benefits to be unauthorized such that the Chairman on whose behalf you have inquired could not receive them. The State Ethics Commission does not have the express statutory authority to interpret the Municipality Authorities Act of 1945. Furthermore, the provision is not DeSantis, 96 -566 June 10, 1996 Page 4 clear on its face. To the contrary, the provision is easily subject to at least two interpretations. One could argue that the parenthetical notation to officers and officials as not being entitled to such coverage includes Members holding such dual roles as employees. On the other hand, one could argue that Members who are also employees "wear two hats" and that as employees they are entitled to such benefits, while the parenthetical notation is directed to those who are strictly officers and officials and not employees. Unless and until a court interprets the provision, there can be no definitive answer to your question. It would seem that rather than directing your inquiry to this Commission, you may wish to consider filing a declaratory judgment action with the appropriate court. 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: The Chairman of the Rush Township Sewer Authority is a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, a member /chairman of a township sewer authority who is also an employee of the authority may or may not be allowed to receive hospital and /or medical benefits paid for by the authority depending upon the appropriate judicial forum determining whether such is permitted under the Municipality Authorities Act of 1945, 53 P.S. §306B(q). 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. This letter is a public record and will be made available as such. 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 DeSantis, 96 -566 June 10, 1996 Page 5 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. Si rely, c Vincent J. DI• ko Chief Counsel