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HomeMy WebLinkAbout99-507 ConnersSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL February 17, 1999 Theresa Conners, Township Manager /Secretary/Treasurer Plumstead Township 5186 Stump Rd., Box 387 Plumsteadville, PA 18949 Re: Conflict; Public Official /Employee; Supervisors; Plumstead Township; Second Class Township; Medical Insurance. Dear Ms. Conners: This responds to your letters of December 31, 1998 and January 13, 1999 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et sea., presents any prohibition or restrictions upon second class township supervisors receiving township -paid medical insurance coverage. Facts: As Manager /Secretary/Treasurer for Plumstead Township ( "Township "), a Second -Class Township, you have been authorized by Karen E. Helsel, Chairwoman of the Township Board of Supervisors, George L. CapeII, Vice - Chairman of the Board, and Daniel E. Crooke, a member of the Board, to request an advisory on their behalf from the State Ethics Commission. The Township Supervisors are not currently covered under the Township's medical insurance policy; however, two Supervisors are interested in enrolling in the Township's medical insurance plan in 1999. You specifically inquire as to whether: 1) the existing policy for Supervisor's medical benefits, effected through a motion of February 15, 1994, extends to current Board members whose terms began after April 1, 1994; 2) the Township is permitted to pay the medical insurance coverage premiums for eligible Supervisors, as it does for all covered Township employees; and 3) any requirements exist in the Second Class Township Code, in addition to Section 606 which specifies that Supervisors must submit a letter requesting coverage at a regularly scheduled Board meeting, that must be followed in order for the Supervisors to receive group medical coverage. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(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 Pa.C.S. §§1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec@state.pa.us 99 - 507 Conners, 99 -507 February 17, 1999 Page 2 As Supervisors for Plumstead Township, Karen E. Helsel ( "Helsel "), George L. CapeII ( "CapeII ") and Daniel E. Crooke ( "Crooke ") are public officials as that term is defined in the Ethics Act, and hence Helsel, CapeII and Crooke are subject to the provisions of that Act. 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. 65 Pa.C.S. §1102. "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. Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit 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. Although the Commission does not have the power to interpret or administer the Second Class Township Code ( "Code "), Act 69 of 1933, PL 103 as added by Act 60 of 1995, PL 350, the Commission will review other statutes where it is necessary to determine whether a particular benefit is unauthorized in law so as to be a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. See, Givachini, Opinion 90 -008. The Code provides in part: (c) In addition to the compensation authorized under this section, supervisors while in office or while in the employ of the township may be eligible for inclusion in township -paid insurance plans, as follows: Conners, 99 -507 February 17, 1999 Page 3 (1) Supervisors, whether or not they are employed by the township, and their dependents are eligible for inclusion in group life, health, hospitalization, medical service and accident insurance plans paid in whole or in part by the township. Their inclusion in those plans does not require auditor approval, but does require submission of a letter requesting participation at a regularly scheduled meeting of the board of supervisors before commencing participation. The insurance shall be uniformly applicable to those covered and shall not give eligibility preference to or improperly discriminate in favor of supervisors. 53 P.S. 65606(c)(1). The issue of medical insurance benefits for second class township supervisors was addressed by the Commission in Akely, Order 976. The Commission reviewed the question of the entitlement to such medical benefits both prior and subsequent to the Code amendment in 1992 which modified such coverage. The Commission provided the following general commentary concerning post -1992 eligibility for such benefits The Code provides that a supervisor is eligible for benefits even if he is not an employee. The Code also requires that insurance plans shall be "uniformly applicable" and shall not "improperly discriminate," which must also have a meaningful application. As to a township where there is one benefit package for all who are eligible, the above interpretation must be reached in order for both of the above two provisions to be operative. If we conclude that a supervisor, be he full time, part time or nonemployed, is not entitled to benefits in a township where there is only one benefit package for eligible participants, we would negate the provision in the Code that allow "Supervisors ... [to be] eligible for insurance plans paid in whole or in part by the township . . ." If there are two or more plans in a township with one of the plans providing quantitatively or qualitatively better benefits to the supervisor so that there is a discrimination which in improper in favor of the supervisors or is not uniformly applicable as to those who are eligible, then we believe under such facts that those types of plans would be contrary to the Code and the Ethics Law. Akely, at 32, 33. In applying the above to the first two inquiries you pose, Section 1 103(a) of the Ethics Act would not prohibit the Plumstead Township Supervisors, whose terms began after the passage of a motion which allowed for inclusion of the Supervisors on the Township medical insurance policy, to obtain such medical insurance coverage. It is factually assumed that the policy is "uniformly applicable" and does not "improperly discriminate" in favor of the Supervisors. As to your second inquiry, it is permissible under Section 1103(a) of the Ethics Act for the Township to pay for the medical insurance of the Supervisors along with all Township employees provided the above two conditions as to "uniformly applicable" and "improperly discriminate" [the lack thereof] are satisfied. Conners, 99 -507 February 17, 1999 Page 4 Your third inquiry seeks a straightforward application of the Code which is beyond the scope of the Ethics Act. On that issue, consideration might be given to contacting the Township Solicitor or legal counsel. 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. Conclusion: As Supervisors for Plumstead Township, Helsel, CapeII and Crooke are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Section 1103(a) of the Ethics Act would not prohibit supervisors, whose terms began after the passage of a motion allowing for such medical benefits, from receiving township -paid medical benefits if two conditions are met: 1) the insurance plans must be "uniformly applicable" to those covered; and 2) the insurance plans must not "improperly discriminate in favor of" the Supervisors. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(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 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. erely, incent J. pko Chief Counsel