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HomeMy WebLinkAbout99-555-C ConfidentialSTATE 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 August 5, 1999 99 -555C Re: Conflict; Public Official /Employee; Supervisor; Second Class Township; Compensation; Administrative Duties; Expenses. This responds to your letter of July 6, 1999 by which you requested clarifying confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 gt seq., presents any prohibition or restrictions upon supervisors in a second class township from receiving compensation in certain positions of employment which may include duties of the elected office of township supervisor. Facts: By letter dated May 6, 1999, you requested a confidential advisory whether the Township Supervisors in A Township could be reimbursed for attending meetings of non - township agencies, for assisting in municipal park project services, for attending property owner conferences or for preparing the township newsletter. On June 8, 1999, Advice of Counsel 99 -555 was issued which advice is incorporated by reference as if fully set forth herein. That Advice concluded that the Supervisors may not receive compensation for attending meetings of non - township agencies, for assisting in municipal park project services, for attending property owner conferences or for preparing the township newsletter, but if the Supervisors are employed by the Township in laborer positions, they may be compensated for performing physical labor in planting various materials within the park. By letter dated July 6, 1999 you timely requested clarification of that Advice. In your request for clarification you state that you may have omitted several facts which would have been helpful as to the initial advice. You now provide the following. The Second Class Township Code (Code) was revised in its reenactment in 1995. The Code was modified with respect to the compensation to supervisors based upon township population and the employment of supervisors for certain township functions. Section 65606 provides in part as follows: The compensation of supervisors, when employed as roadmasters, laborers, secretary, treasurer, assistant secretary, assistant treasurer or in any employee 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. FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Confidential Advice, 99 -555C August 5, 1999 Page 2 The above section prohibits the payment of supervisors as employees for attending a meeting of the board of supervisors. Commentators, in reviewing this language, have generally regarded it as an expansion of the ability of second class townships to compensate supervisors for performing "work" duties. You state that the Advice of Counsel, 99 -555, does not deal with the application of the Ethics Act to this provision of the Code. The Supervisors, by a resolution adopted in 1993, created the position of park and recreation director, and prepared a job description. A photocopy of both Resolution 93 -3 and the Park and Recreation Director Job Description have been supplied. The eight duties listed in the job description for the Park and Recreation Director are as follows: "1. Organize and oversee the Pee Wee baseball program. 2. Lead monthly meetings with the. Park and Recreation Committee (if necessary) and report activities to the Board of Supervisors. 3. Work with the Supervisors, Park & Recreation Committee, and leaders on the Summer Park and Recreation Playground Program. 4. Work with the Supervisors, Engineers and others on the development of park land in Benner Township. 5. Make application of grants and other moneys available for park and recreation development and operation. 6. Prepare a budget and submit to the Supervisors by September 30 for the following calendar year. 7. Preside over fund raisers to make park and recreational activities outside of the Summer Recreational program self sufficient. 8. Other duties and responsibilities may be assigned to the director as deemed necessary by the Board." Because of a time constraint, the supervisors appointed co -park and rec directors at their organizational meeting. The duties of the job as outlined were reviewed with the auditors and a compensation rate was established. The non - supervisor park and rec director was unable to complete the responsibilities so that the obligation fell almost entirely to the Supervisor Park and Rec Director. In addition to management functions, the Supervisors also performed labor in terms of actually planting plant materials and assisting in the installation of equipment at a township park project. Records of hours and tasks performed were submitted for review and approved by the Board of Supervisors. Prior to 1997, the township newsletter was prepared by a paid township staff assistant. The staff assistant resigned and in order to continue the newsletter, a supervisor assumed responsibility for performing those services following a review and approval of the Board of Supervisors. Hourly rates for the service had previously been established by the auditors and the services were performed. Work hours were then submitted and reviewed by the Board. Confidential Advice, 99 -555C August 5, 1999 Page 3 As to the above positions of park and rec director, park laborer and newsletter editor, you state that these functions encompass laborer, secretary or "any employee capacity" as set forth in the Code. You do not find that the Code prohibits the participation by a township supervisor in such matters. You request clarification on those points. You also inquire about compensation for attendance at non - supervisor meetings which you assert fall into two classifications: 1. Meetings where the supervisor is attending in the capacity of supervisor, such as regional planning commissions, highway advisory meetings or other functions where the supervisor is attending in the capacity of their office. 2. The supervisors also attend focus group meeting[s] where their attendance is on behalf of the township, performing services for the township, but is not necessarily occassioned by their being a supervisor of the township. For example, the township in question determined that it was appropriate for the township to participate in a vision committee and historical preservation committee. These committees performed planning and research functions which otherwise would have been paid to a professional planner or research assistant. The supervisor, in the performance of those duties, was not acting as a supervisor. The township had previously authorized compensation to the supervisor for attendance at such meetings. Since the Second Class Township Code limits compensation only for attendance at supervisor meetings, it is unclear what the relationship between the silence of the Second Class Township Code and the Ethics Act might be on this point." Discussion: As previously noted, pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), advisories are issued concerning prospective conduct only 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. In that Advice 99 -555 is incorporated by reference, the relevant Sections of the Ethics Act together with the judicial and Commissions opinions will not be repeated for purposes of administrative economy. The additional issues you have raised will now be addressed. Although the 1995 revision to the Code expanded the positions in which supervisors may be employed by a township, the Code did not abrogate the limitation that supervisors may not be compensated as an employee for performing those duties and responsibilities associated with the position of elected supervisor. Thus, any attempt to place a supervisor in a position of employment and compensate that supervisor for performing duties encompassed within the function of elected supervisor would contravene Section 1103(a) of the Ethics Act. See, Wasiela, Order 932; R.H. and T.W. v. SEC, 673 A2d 1004 (1996). Confidential Advice, 99 -555C August 5, 1999 Page 4 As to certain designated positions of employment such as the park and recreation director, park laborer and newsletter editor, such positions of employment would not be prohibited by the Ethics Act, based upon Section 65606 of the Code. It is assumed factually that the statutory mandates of the Code have been satisfied, namely, that compensation be determined by the board of auditors and be comparable to that paid in the locality for similar services. 53 PS §65606(a). In addition, as noted above, the duties performed in an employment position for which compensation would be received may not be duties which are encompassed within the office of elected supervisor. See, 53 PS §65607, infra. For example, if the newsletter editor is engaged in drafting the newsletter, such work would be properly compensable. However, if a constituent meets with that supervisor about the newsletter (eliminating, expanding or modifying the newsletter), that time is an administrative duty of the supervisor as an elected official and could not be included on his /her hourly time card as a township employee. Similarly, a park laborer could be compensated as a township employee for performing labor duties associated with that particular position. A supervisor may not perform duties associated with his elected office under the semblance of an employment position for compensation, as for example attending meetings with other agencies as an elected supervisor; such administrative duties as an elected official could not be included on his /her time card. Section 65607 of the Code delineates the duties of supervisors in the township: The board of supervisors shall: (1) Be charged with the general governance of the township and the execution of legislative, executive and administrative powers in order to ensure sound fiscal management and to secure the health, safety and welfare of the citizens of the township. 53 PS 65607 (1) As to the position of park and recreating director, a job description has been supplied. However, the eight duties listed for the most part lack specificity so that it is exceedingly difficult to determine whether the duty is encompassed within that of elected supervisor or of township employee. Although item 1 would be an employment duty, it seems that items 2, 3 and 4 which involve working with the Board concerning the program for the Park and its development constitute administrative duties of the elected supervisor. These activities fall within the area of the general governance of the township. To conclude otherwise would result in the anomalous situation whereby the supervisor, as a compensated employee, would meet with himself as elected official and the other supervisors concerning issues with which the supervisors as elected officials must take action. Items 5 through 8 are too nondescript to make a determination of whether these duties are encompassed within the elected office of township supervisor. As to the last two groupings of "non- supervisor meetings ", the first group involving meetings attended by supervisors as elected officials by its very statement mandates that compensation may not be received for such activities as township employees. As to the second category, the attendance of the supervisors at focus group meetings would not allow the supervisors to be compensated as employees for such activities. Participation by the supervisors in vision and historical preservation committees would fall within the area of securing the health, safety and welfare of the citizens of the township. The fact that in some instances the supervisors could pay Confidential Advice, 99 -555C August 5, 1999 Page 5 some other non - supervisor to perform that function does not provide a basis for the supervisors to be then compensated for activities that they would perform as an elected official. 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 gt se=. Although the Supervisors may be compensated as township employees in certain positions such as township laborer, newsletter editor, or park and recreation director, the Supervisors could only be compensated for duties performed in those positions that do not constitute duties associated with the elected office of township supervisor. 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. Siy\cerely, Vincent J. Dopko Chief Counsel i