Loading...
HomeMy WebLinkAbout97-525 ShirkKenelm L. Shirk, III, Esquire 115 South State Street Ephrata, PA 17522 -2412 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 February 13, 1997 97 -525 Re: Conflict; Public Official /Employee; Township; Supervisor; Holiday Appreciation Party; Planning Commission; Park and Recreation Committee; Emergency Management Director; Honorarium; Non - Compensated Members; Township Funds. This responds to your letters of January 8, 1997 and January 13, 1997 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 Township Supervisors as to the expenditure of Township funds for a holiday appreciation party to honor Members of the Planning Commission, Park and Recreation Committee, and the Emergency Management Director for their non - compensated services to the Township. Facts: As the Solicitor for Clay Township, you have been authorized by each of the Township Supervisors to request an advisory as to the expenditure of Township funds for a holiday appreciation party which would consist of a dinner for each member and a guest at an approximate cost of $25. The party would be to honor the Planning Commission Members, Park and Recreation Committee Members, and the Emergency Management Director for their non - compensated services during the previous year. You state that this is not "compensation" but rather an honorarium by the Township for public servants who have served without compensation. You note that the Pennsylvania Municipalities Planning Code specifically prohibits compensation to Planning Commission Members and there is no mention in the Second Class Township Code relating to compensation of Park and Recreation Committee Members or an Emergency Management Director. Since you have some concerns about the proposal, you request an advisory for clarification of this matter. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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 Shirk /Clay Township Supervisors, 97 -525 February 13, 1997 Page 2 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. Supervisors for Clay Township are public officials as that term is defined under the Ethics Law, and hence are subject to the provisions of that law. As to the Members of the Planning Commission and Park and Recreation Committee, as well as the Emergency Management Director, it is assumed that they are public officials since no facts have been supplied to determine whether they are public officials as that term is defined under the Ethics Law and Regulations. 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. "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 fhirki_clav Township Supervisors, 97 -525 February 13, 1997 Page 3 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(d) of the Ethics Law provides as follows: Section 3. Restricted activities (d)(1) No public official or public employee shall accept an honorarium. 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 written memorandum to that effect with the person recording the minutes or supervisor. In applying Section 3(a) of the Ethics Law to the instant matter, the actions of the Supervisors will first be addressed followed by the actions of the Planning Commission Members, Park and Recreation Committee, and Emergency Management Director. As to the Supervisors, Section 3(a) would prohibit the utilization of Township funds for the holiday party assuming that the Supervisors would attend. Supervisors Shirk /Clay Township Supervisors, 97 -525 February 13, 1997 Page 4 as public officials have their compensation set by the Second Class Township Code and any actions on their part to increase that compensation for themselves would be contrary to the Ethics Law. See, RH & TW v. SEC, 677 A.2d 1004 (1996). If the Supervisors would not participate in the holiday party, there would be no prohibition on them because they would not be receiving a private pecuniary benefit. In this regard it is factually assumed that no Members or guests are members of the immediate family of the Supervisors. As to the Planning Commission Members, Park and Recreation Committee Members, and Emergency Management Director, assuming that once again these individuals are public officials, they would be prohibited from receiving the holiday party for the reason that public officials may only receive those pecuniary benefits which are authorized by statute. RH & TW v. SEC, supra. The argument that a benefit like a holiday party is not compensation is questionable. See, Synoski v . Hoyle Township, 500 A.2d 1282 (1985), where Commonwealth Court noted that: J , at 1285. The word "compensation" under the statute includes more than mere wages; it also includes fringe benefits such as insurance, pension, and medical plans and premiums. McCutcheon, 77 Pa.Commonwealth Ct. at 553, 466 A.2d at 286. It has also been factually stated that the holiday party is an honorarium. Section 3(d)(1) of the Ethics Law provides a total prohibition against honoraria. See, Richardson, Opinion No. 93 -006. Therefore, based upon the submitted facts and the assumption that the Planning Commission Members, Park and Recreation Committee Members, and Emergency Management Director are public officials, Section 3(a) and (d)(1) of the Ethics Law would prohibit the receipt of the holiday party as an honorarium to these individuals. 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: Supervisors for Clay Township are public officials subject to the provisions of the Ethics Law. It is assumed that the Planning Commission Members, Park and Recreation Committee Members, and Emergency Management Director are public officials. Subject to the factual assumptions and the qualifications noted above, Section 3(a) and (d)(1) of the Ethics Law would prohibit the receipt of the holiday party to these public officials. 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. Shirk /Clay Township Supervisors, 97 -525 February 13, 1997 Page 5 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 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. ' cerely, Vincent 'i. Dopko Chief Counsel