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HomeMy WebLinkAbout99-552 McKennaWendy Feiss McKenna Keenan, Ciccitto & Bryant 376 East Main Street, P.O. Box 26460 Collegeville, PA 19426 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL May 24, 1999 99 -552 Re: Conflict; Public Official /Employee; Supervisor- employee; Public Works Department; Compensation; Benefits; Paid Leave; Insurance; Compensation Set by Board; Overtime; Private Pecuniary Benefit. Dear Ms. Feiss McKenna: This responds to your letter of April 21, 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 supervisor as to employment by the township public works department wherein he would receive overtime and paid holidays, election, sick and personal days and health insurance just like the full time non uniformed employees. Facts: Prosper Guerra - Chaley (Chaley) was employed by New Hanover Township as a part time Highway Department laborer beginning in June, 1995. Due to the fact that Guerre - Chaley occasionally worked in excess of 25 hours per week, he entered into a contract whereby health and dental insurance benefits were specifically excluded, but other "full time" benefits were retained, such as holiday pay and vacation. In January, 1999, the Board of Supervisors offered Chaley a full time position with the Public Works Department, whereby he would be entitled to health and dental benefits in addition to other benefits offered to full time employees. Chaley is interested in a 32 hour work week with two weeks vacation in 1999 and the same schedule as other employees thereafter, 7.5 paid holidays plus election day, sick days to accrue at a rate of eight per year, three personal days, and health insurance as provided to other full time non - uniform employees. Chaley is willing to waive pension, dental insurance, life insurance, and disability insurance. Chaley may exceed the 32 hour workweek depending upon his schedule and the needs of the Township. Overtime would be compensated at 1.5 times the rate of pay established by the Board of Auditors multiplied by the hours worked in excess of 40 hours per week. Inquiry is made regarding the propriety of the proposed employment contract between Chaley and the Board of Supervisors which has agreed to the above terms and conditions. FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec @state.pa.us McKenna, 99 -552 May 24, 1999 Page 2 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), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct which has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be addressed. As Supervisor for Public Works Department, Chaley is a public official as that term is defined in the Ethics Act, and hence Chaley 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. McKenna, 99 -552 May 24, 1999 Page 3 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 1103(j) of the Ethics Act provides as follows: Section 1 103. Restricted activities. (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 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. 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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. The issues which you pose will now be addressed. McKenna, 99 -552 May 24, 1999 Page 4 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. Under Section 1103(a), the Commission has addressed the issue of an elected public official receiving compensation for himself through action of the governmental body of which he is a member and concluded that such would be a use of authority of office to obtain a private pecuniary benefit. Initially, it is noted that the law generally in Pennsylvania prohibits public officials from setting their own salaries. If such action were taken, 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 Iaw. JVlarsh, 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 a supervisor who is employed by the township must have his compensation set by the township board of auditors: "Compensation of supervisors, when employed as roadmaster, laborers, secretary, treasurer, assistant secretary, assistant 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." 65 PS 65606(a) If the Supervisor - employee would accept the compensation set by the Board of Supervisors, with or without his participation, such compensation would not be authorized in Iaw 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); Yocabet v. SEC, 531 A.2nd 536 (1987). See, also, 65 P.S. 65606(a), supra. As to the requirement that the compensation of a supervisor- employee be set by the board of auditors, the courts have held that compensation is not merely limited to rate of pay. Thus, auditor approval is required for paid leave and certain benefits. See Synoski v. Hagle Township, 500 A.2nd 1282 (1985) wherein the Court discussed the requirement and scope of auditors setting wages /benefits for supervisor - employees: The supervisors are empowered under Section 516 of the Code, 53 P.S. § 65516, and elsewhere, to hire road crews and appoint themselves to roadmaster and laborer positions. The manifest purpose of Section 515 of the Code is to prevent supervisors from enriching themselves at county expense by setting their own salaries as road masters. Auditors have very broad discretion in setting salaries pursuant to Section 515. - - - The word "compensation" under the statute includes more than McKenna, 99 -552 May 24, 1999 Page 5 Inc.. at 1285 Ld. at 86 mere wages; it also includes fringe benefits such as insurance, pension, and medical plans and premiums. Even the Pennsylvania State Association of Township Supervisors has recognized that certain benefits, in addition to compensation, require auditor approval. In the "Questions and Answers ", of the Pennsylvania Township News, June, 1989, edition, the following position statement appears: Who must approve days off for vacation and holidays for supervisor - employees? Because these benefits are determined to be compensation, the township auditors must approve the vacation and holiday schedule for supervisor - employees. Therefore, as to compensation and paid leave, such as vacation, holidays, election, personal and sick days, there must be approval by the Board of Auditors. If Chaley were to take such benefits without the requisite auditor approval, it would not be authorized compensation and consequently a private pecuniary benefit prohibited by Section 1 103(a) of the Ethics Act. Specifically as to insurance, such is provided for in the Code, Section 606(c), 53 P.S. § 65606(c). That provision of the Code allows inter alia a supervisor to receive insurance benefits without the need of auditor approval provided the following conditions are met: submission letter requesting participation at a regularly scheduled board meeting, uniform applicability as to the insurance, no eligibility preference and no improper discrimination in favor of the supervisors, See, Akerly, Order 976. As to overtime, it has been stated that overtime at 1.5 times the base rate of compensation has been approved by the Board of Auditors. Accordingly, Chaley would be entitled to receive such overtime in that the overtime is authorized as per the auditors approval. Accordingly, Section 1 103(a) of the Ethics Act prohibits Chaley from receiving compensation or benefits as a supervisor- employee that is not approved by the Board of Auditors. As to insurance that the Chaley may receive, such is provided for and limited by the conditions in Section 606 of the Code, supra, as noted 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: As Supervisor for Public Works Department, Prosper Guerre - Chaley is a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 Chaley as a supervisor - employee may not receive compensation as a township employee through a contract with the Board; his compensation and benefits, except insurance, must be set by the auditors. Overtime approved by the auditors is permitted as authorized in law. Paid leave for holidays, election, sick and personal days without auditor approval is unauthorized and prohibited by Section 1 103(a) of the Ethics Act. Insurance may be received provided McKenna, 99 -552 May 24, 1999 Page 6 the conditions as required by law and noted above are met. 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 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 §1.3.2(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. lis ' cerely, Vincent . opko Chief Counsel