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Home My WebLink About99-555 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL June 8, 1999 FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec @state.pa.us 99 -555 Re: Conflict; Public Official /Employee; Supervisor; Second Class Township; Compensation; Administrative Duties; Expenses. This responds to your letter of May 6, 1999 by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 e agg.., presents any prohibition or restrictions upon supervisors in a second class township from receiving reimbursement or expenses for attending meetings for non - township agencies, for assisting in municipal park project services, for attending property owner conferences or for preparing the township newsletter. Facts: In A Township Township Supervisors have obtained reimbursement on an hourly basis for time spent on Township business as well as reimbursement for out -of- pocket expenses such as mileage. The rate was established by the Township Auditor(s) depending upon the nature of the service. The Supervisors receive a salary based upon the maximum compensation as set forth in the Second Class Township Code relative to the population at the time of election. The Supervisors seek a continuation of the past practice and inquire as to whether they may be reimbursed for time expended performing the following Township services: "(a) Attendance at meetings for non - township agencies; for example, conferences with Department of Environmental Protection in B concerning sinkholes in the Township, C Corridor meetings with the Department of Transportation, meetings concerning the preparation of grant applications for D grants, local watershed committee meetings, airport action committee meetings dealing with the airport located within A Township, A Township history group meetings and road inspection meetings. (b) Municipal park project services; can the Supervisors be reimbursed for time spent in assistance with Township park projects including planning meetings with various conservancy groups, history groups, governmental agencies, designers and the actual physical labor in planting various materials within the park? (c) Property owner conferences where the Supervisor is responding to a citizen complaint. (d) Preparation and production of the Township newsletter." 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 Confi.ential Advice, 99 -555 June 8, 1999 Page 2 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. It is further noted that, pursuant to Sections 1107(10) and (1 1) of the Ethics Act, 65 Pa.C.S. §1107(10), (11), an opinion /advice may 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. Supervisors for A Township are public officials as that term is defined in the Ethics Act, and hence the Supervisors are 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. 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 Commission has addressed the issue of acceptance by a public official of compensation for himself and concluded that such would be a use of authority of office to obtain a 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 if it is not authorized in law. Marsh, Opinion No. 93 -007. The Commission does not have the power Confidential Advice, 99 -555 June 8, 1999 Page 3 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. The Commission has addressed the issue of a supervisor receiving compensation for "administrative" services in Wasiela, Order 932: There is a fundamental distinction which exists between a township supervisor in the capacity as an elected public official and as a paid township employee. The compensation which the supervisor as elected official receives is limited by Section 515 of the Township code, supra. As noted above, any legislative or administrative duties are encompassed within the duties of elected supervisor for which the supervisor may not receive any additional compensation from that authorized in Section 515. As a working township employee, the supervisor may be compensated at the hourly rate or salary set by the auditors for performing duties which are employee related. j at 61 * * Encompassed within such administrative duties for which a supervisor may not be compensated are attending various board and commission meetings and spending time on local agency business. Pennsylvania Township News, May, 1993 at 82 and April, 1994 at 78. In Wasiela, supra, the Commission held that Wasiela violated the Ethics Act in receiving compensation for performing administrative functions which were encompassed with the functions of elected supervisors, such as, consulting with the solicitor or engineer, meetings with constituents, attending meetings of other municipal bodies, and similar matters. In R.H. and T.W. v. SEC, 673 A2d 1004 (1996) the Commonwealth Court, in affirming in part and revising in part (on other grounds), noted: T.W. maintains that he is entitled to hourly wages for performing these duties. He notes that the recent growth of the Township led to a substantial increase in demands upon the Township government and that the Supervisors have assumed responsibility for meeting much of this burden. With this argument, T.W. implies that, because the rise in activity forced him to work in excess of the stated duties of Township Supervisors, he was properly compensated for such actions with an hourly wage. We sympathize with T.W.; however, there is no question that the duties at issue were supervisory in nature. The supervisory salary was statutorily set and encompassed all of the ensuing administrative functions. Thus, T.W. violated the 1978 Act when, in addition to his Supervisor's compensation, he received hourly wages as an employee for performing administrative duties. In the instant matter, all of the duties, except the physical labor of planting material in the park, for which the Supervisors seek compensation are administrative duties associated with the position of elected supervisor and not that of Township employee. Accordingly, the Supervisors may not receive compensation for attending meetings for non - township agencies, for assisting in municipal park project services, for attending property owner conferences or for preparing the township newsletter. If Confidential Advice, 99 -555 June 8, 1999 Page 4 a Supervisor is employed as a laborer, he would be permitted to receive compensation for planting materials within the Township park. 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: Supervisors for A Township are public officials subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act"), 65 Pa.C.S. §1101 seq. The Supervisors may not receive compensation for attending meetings for non - township agencies, for assisting in municipal park project services, for attending property owner conferences or for preparing the township newsletter. If a Supervisor is employed by the Township in a laborer position, he may be compensated for performing physical labor in planting various materials within the park. 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 § 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. Dopko Chief Counsel