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Home My WebLink About99-506 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING . P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL February 4, 1999 99 -506 Re: Conflict; Public Official /Employee; Councilmember; Borough Council; Compensation; Increase; Vote; Borough Code. This responds to your letter of January 6, 1999 by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act presents any prohibition or restrictions upon councilmembers in passing an ordinance which would raise their salaries during their terms of office. Facts: As Solicitor for the Borough of A ( "Borough "), the members of Borough Council have authorized you to request a confidential advisory on their behalf from the State Ethics Commission as to whether they may, under 53 P.S. 46001 of the Borough Code, pass an ordinance which would raise their salaries during their terms of office. You submit that 53 P.S. 46001 provides: "Councilmen may receive compensation to be fixed by ordinance at any time and from time to time as follows: In boroughs with a population of Tess than five thousand, a maximum of eighteen hundred seventy -five dollars ($1,875) a year; in boroughs with a population of five thousand or more but less than ten thousand, a maximum of two thousand five hundred dollars ($2,500) a year; in boroughs with a population of ten thousand or more but less than fifteen thousand, a maximum of three thousand two hundred fifty dollars ($3,250) a year; in boroughs with a population of fifteen thousand or more but Tess than twenty -five thousand, a maximum of four thousand one hundred twenty -five dollars ($4,125) a year; in boroughs with a population of twenty -five thousand or more but less than thirty -five thousand, a maximum of four thousand three hundred seventy five dollars ($4,375) a year; and in boroughs with a population of thirty -five thousand or more, a maximum of five thousand dollars ($5,000) a year." You state that the Borough has a population of more than five thousand but less than ten thousand and complies with the compensation levels outlined in 53 P.S. 46001. If the Councilmembers would pass such an ordinance in compliance with 53 P.S. 46001 which would raise their compensation during their terms of office, you ask whether such action would be in violation of the Ethics Act. FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec @state.pa.us Confidential, 99 -506 February 4, 1999 Page 2 You further request: "Should the Commission find the compensation statute for borough councils to be in conflict with the Ethics Act, please provide further direction in the advice as to how this conflict may be resolved." Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §§1107(10), (11), ( "Ethics Act "), 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 Pa.C.S. §§1107(10), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. The Members of the Borough of A Council are public officials as that term is defined in the Ethics Act, and hence they are subject to the provisions of that law. Section 1103(a) of the Ethics Act provides: Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act as follows: Section 1102. 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. The term 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. 65 Pa.C.S. §1102. In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit Confidential, 99 -506 February 4, 1999 Page 3 of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Our review under Section 1103(a) of the Ethics Act is limited to whether the Councilmembers may receive compensation set by the governing body during their terms or whether such compensation may be received by only subsequently appointed members. Although the State Ethics Commission does not have jurisdiction to interpret the Borough Code and the Pennsylvania Constitution, it is necessary in this case to review such laws to the extent that they impact upon the Ethics Act regarding the issue of whether there would be a use of authority of office to obtain a private pecuniary benefit. Article III, Section 27 of the Pennsylvania Constitution provides: 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. As to the above- quoted provision of the Pennsylvania Constitution, a question of interpretation arises as to the meaning of "law" vis -a -vis the prohibition as to a salary increase after election or appointment. It appears that the courts in Pennsylvania have limited the above Constitutional proscription to laws of the General Assembly but not to ordinances by municipal bodies. See, Baldwin v. Philadelphia, 99 Pa. 164 (1881); McKinley v. Luzerne Township School District, 383 Pa. 289, 118 A.2d 137 (1955). Therefore, under the judicial precedent which has interpreted the above Constitutional provision, it seems that there is no constitutional bar for salary increases as to current Members of the Borough Council. Assuming that the salary increase is within the range provided for by law relative to the population of the Borough, the Ethics Act would not prohibit the Borough Councilmembers from passing an ordinance which would raise their salaries during their terms of office. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability df the Borough Code. Conclusion: The Members of the Borough of A Council are public officials subject to the provisions of the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11 ( "Ethics Act "). Assuming that the salary increase is within the range provided for by law relative to the population of the Borough, the Ethics Act would not prohibit the Borough Councilmembers from passing an ordinance which would raise their salaries during their terms of office. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1 107(1 1), 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. Confidential, 99 -506 February 4, 1999 Page 4 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 . Dopko Chief Counsel