HomeMy WebLinkAbout00-550 SchuckmanEarl Schuckman
3582 Fissels Church Road
Glen Rock, PA 13727
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
March 23, 2000
Re: Conflict; Public Official /Employee; Township; Supervisor; Stipend; Appointment
to Commission.
Dear Mr. Schuckman:
This responds to your letters of February 11, 2000 and February 22, 2000 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 sew., presents any prohibition or restrictions upon a township
supervisor as to accepting a stipend for attending a meeting of a township commission
to which he was appointed.
Facts: As a Township Supervisor, you seek an advisory from the State Ethics
Commission based upon the following submitted facts.
The Township has, over the last several years, given a stipend of $15 to
volunteer members of the Recreation Board, Tax Commission and Planning
Commission to cover expenses for attending meetings. This year, you, in your
capacity as Supervisor, have been appointed to one of the commissions to represent
the Township. You do not feel that you are entitled to the $15 stipend since such
compensation is not authorized by the Township Auditors and a question exists as to
whether your involvement as to the commission is administrative in nature.You ask
whether you may accept the $15 stipend.
You also ask where the responsibility would lie when you would turn in a time
sheet which would be paid by the Board of Supervisors and it would later be
discovered that your work was administrative in nature.
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).
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us
00 -550
Schuckman, 00 -550
March 23, 2000
Page 2
An advisory only affords a defense to the extent the requestor has truthfully disclosed
all of the material facts.
As a Township Supervisor, you are a public official as that term is defined in the
Ethics Act, and hence you 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.
"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.
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.
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
Schuckman, 00 -550
March 23, 2000
Page 3
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.
Furthermore, a conflict of interest exists under the Ethics Act where a pecuniary
benefit or financial gain (such as salary, benefits, and the like) is derived as a result of
holding incompatible offices simultaneously. The Commission has determined that if
a particular statutory enactment prohibits a public official from receiving a particular
pecuniary benefit or financial gain, then that public official's receipt of same, through
the authority of public office, is unauthorized in law and hence, contrary to Section
1 103(a) of the Ethics Act.
In this case, in order to determine whether a particular pecuniary benefit or
financial gain is prohibited by law, the provisions of the Second Class Township Code
must be reviewed.
§ 65403. Supervisors
(b) Except as otherwise provided in this act, no
supervisor shall at the same time hold any other elective or
appointive township office or position. Nothing in this
subsection shall prohibit a supervisor from being a member
of a township planning commission created under the act of the
July 31, 1968 (P.L. 805, No. 247), known
"Pennsylvania Municipalities Planning Code."
53 P.S. §65403(b).
You have stated as a fact that you as a Supervisor have been appointed to a
commission in the Township. You have not indicated whether you have been
appointed to a township planning commission created under the Pennsylvania
Municipalities Planning Code, 53 P.S. §10101 et sq. Assuming that you have been
appointed to the type of planning commission described above, since your membership
to that commission is authorized in law, you may accept compensation which is
authorized in law in the capacity of a commission member.
As to any other elected or appointed office, you may not receive compensation
for the reason that you may not hold such office. Attending such meetings not as a
Board Member but as a representative of the Board of Supervisors constitutes an
administrative function for which you could not receive co 932 affirmed as in To nshi
emp See , Hessinger, Order 931 and Wasiela,
and T.W. v. State Ethics Commission, 673 A.2d 1004 (Pa. Commw. Ct. 1996).
Finally, regarding payment received by the Board of Supervisors for
administrative work, you are advised that advisories do not address past conduct. As
to any future conduct that you might perform, you may contact this Commission for
advice. Any such request should detail the duties you would be performing so as to
enable this Commission to determine whether they are employee or supervisory in
nature.
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. Specifically not addressed herein is the
applicability of the respective municipal code.
Schuckman, 00 -550
March 23, 2000
Page 4
Conclusion: As a Township Supervisor, you are a public official subject to the
provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§1101 et seg. You may, consistent with Section 1 103(a) of the Ethics Act,
simultaneously serve in the positions of township supervisor and member of a
township planning commission provided such planning commission has been created
under the Pennsylvania Municipalities Planning Code. Further, assuming that you have
been appointed to such type of planning commission, you may accept compensation
authorized in law in the capacity of a commission member. As to any other elected
or appointed office, you may not receive compensation for the reason that you may
not hold such office. Attending such meetings not as a Board Member but as a
representative of the Board of Supervisors constitutes an administrative function for
which you could not receive compensation as a Township employee. 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.
cerely,
Vincent' Dopko
Chief Counsel