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HomeMy WebLinkAbout99-549 MattieChristian T. Mattie Ili, Esquire P.O. Box 266 168 Main Street Eldred, PA 16731 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL May 18, 1999 Re: Conflict; Public Official /Employee; Supervisor; Second Class Township; Compensation; Benefits; Collective Bargaining; Union; Employee; Participation; Use of Authority of Office; Setting Own Compensation. Dear Mr. Mattie: This responds to your letter of April 12, 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 el seq., presents any prohibition or restrictions upon a second class township supervisor in becoming part of a bargaining unit where his compensation and benefits as a supervisor - employee would be set in a collective bargaining agreement negotiated between the township board of supervisors and the union for the township employees. Facts: You are labor counsel for the Township of Bradford, a second class township with a Board comprised of three elected Supervisors. One of the elected Supervisors who is also an employee of the Township, had his compensation in the past set by the Board of Auditors in accordance with 53 P.S. §65606. The position in which the Supervisor is employed is being included within a unit for the purpose of collective bargaining in accordance with the Public Employe Relations Act, 43 P.S. §1101.101 gt sea. You have been specifically requested by the Supervisor, who is also an employee, to request an advisory with respect to the following issues: 1. Can the Supervisor accept the compensation and other benefits set forth in the Collective Bargaining Agreement negotiated between the Union and the Township? 2. Can the Supervisor vote on the ratification of the Agreement? 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 FAX : (717) 787 -0806 a Web Site: www.ethics.state.Ra.us o e -mail: sec@state.pa.us 99 -549 Mattie, 99 -549 May 18, 1999 Page 2 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. As Supervisor for Bradford Township, the Supervisor - employee is a public official as that term is defined in the Ethics Act, and hence he is subject to the provisions of that Act. Section 1 103(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. 65 Pa.C.S. §1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment of the public official /employee would be influenced thereby. Reference is made to these provisions 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 1 103(j) of the Ethics Act provides as follows: Section 1103. Restricted activities. Mattie, 99 -549 May 18, 1999 Page 3 (j) Voting conflict.- -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 h. ve 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. 65 Pa.C.S. §1103(j). In each instance of a conflict, Section 1103(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 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 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. The specific inquiries you pose will now be addressed. The Commission has addressed the issue of participation by a public official in setting compensation for himself and concluded that such would be a use of authority of office to obtain a private pecuniary benefit. There would be a use of authority of office by virtue of the public official holding that position and derivatively taking compensation as a result of public office. Juliante, Order No. 809. The pecuniary benefit would be private because it is not authorized in law. Marsh, Opinion No. 93 -007. The Commission does not have the power to condone the receipt of a pecuniary benefit under the Ethics Act when such benefit is private as being unauthorized and in fact prohibited by law. Confidential Opinion No. 93 -005. In this case, the Second Class Township Code (Code) is explicit that the compensation of supervisor - employees must be set by the township board of auditors: "Compensation of supervisors, when employed as roadmaster, laborers, secretary, treasurer, assistant secretary, assistant Mattie, 99 -549 May 18, 1999 Page 4 65 PS 65606(a) treasurer or in any employe capacity not otherwise prohibited by this or any other act, shall be determined by the board of auditors, at an hourly, daily, weekly, semi - monthly or monthly basis, which shall be comparable to compensation paid in the locality for similar services." If the Supervisor - employee would accept the compensation in the Collective Bargaining Agreement negotiated between the Union and the Township, such compensation would not be authorized in law and hence would be a private pecuniary benefit prohibited by Section 1103(a) of the Ethics Act. See, McCutchein v. SEC, 466 A.2nd 283 (1983). The Supervisor would have a conflict because he as a Supervisor would be participating in a matter that would affect him financially as an employee. See Snyder v. SEC , 686 A.2nd 843 (1996). Even as to the Public Employee Relations Act (Act), it appears that the Supervisor - employee could not be a public employee represented by the Union. The term "public employee" under the Act specifically excludes public officials. See, Article III, Section 301, 43 PS 1101.301. See, also, "Conflict of .Interest" Article XVIII, Section 1801, 43 PS 1101.1801. Accordingly, Section 1103(a) of the Ethics Act prohibits the Supervisor - employee from receiving compensation as a township employee that is not approved by the Board of Auditors, that is, the Supervisor - employee could not accept compensation based upon the Collective Bargaining Agreement negotiated between the Township and the Union. As to benefits that the Supervisor - employee may receive, such are provided for and limited by conditions in Section 606 of the Code, supra. Regarding your second inquiry, the Supervisor - employee may vote on the ratification of the Collective Bargaining Agreement, given that he cannot receive the compensation as negotiated in the Collective Bargaining Agreement as discussed above. 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: The Supervisor for Bradford Township is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Under Section 1103(a) of the Ethics Act, the Supervisor - employee may not receive the compensation negotiated as part of a Collective Bargaining Agreement between the Township and the Union in that his compensation as Supervisor - employee must be set by the Board of Auditors. Benefits to supervisors are provided for and limited by conditions in the Second Class Township Code. The Supervisor - employee could vote on the ratification of the Collective Bargaining Agreement because he is precluded by law from receiving the compensation negotiated between the Township and the Union. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an 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, provided the requestor has disclosed truthfully Mattie, 99 -549 May 18, 1999 Page 5 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. ely, Vincent J. +opk Chief Counsel