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HomeMy WebLinkAbout82-009 WeissRoss Weiss, Esquire Shor, Levin & Weiss, P.C. Suite 6A, Wyncote House Township Line & Washington Lane Wyncote, PA 19095 II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 December 23, 1982 OPINION OF THE COMMISSION RE: Whitemarsh Township Supervisors, Health Insurance Plan Dear Mr. Weiss: I. Issue: 82 -009 As solicitor for Whitemarsh Township, you ask whether the Township Board of Supervisors may take advantage of a benefit plan available to other Township employees. Whitemarsh Township is a Township of the second -class in Montgomery County. This Township, however, will become a home -rule community after January 1, 1983. You have not indicated the nature of the Home -Rule Charter which will be adopted as of this date. However, at the present time Whitemarsh Township is governed by a five - member Board of Supervisors, three of whom were also on the Board at the time the supervisors approved and adopted a plan for health, life, hospitalization, medical services, and accident insurance to be made available for the Township employees and paid out of Township funds. This health insurance plan was adopted by the Township on January 1, 1980, and at the time of its adoption and at the present time the members of the Board of Supervisors are not participants or eligible to participate in the plan. The Board of Supervisors is contemplating expanding the definition of "employee" in the present health and welfare plan to include the supervisors while this Board of Supervisors is in office. The benefits that would be made available to these supervisors would he no different from those benefits which would be available to the other Township employees under the health and welfare plan which, as indicated above, was originally adopted in 1980. These Supervisors do not act as roadmasters as set forth in the Second Class Township Code. Ross Weiss, Esquire December 23, 1982 Page 2 III. Applicable Law: The law to be applied to this question is as follows: Section 1. Purpose. The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 40I. Section 3(a). Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). IV. Discussion: You raise the question as to the authority of the Township Supervisors to purchase such health and welfare insurance and to include themselves in such a plan. Initially, you referred to that provision entitled "Insurance" in the Second -Class Township Code, 53 P.S. 65713 as authorizing the purchase of such plans for Township "employees." You indicate that an article in the May, 1982 edition of the Pennsylvania Township News indicated that this section of the Township Code provided an affirmative and clear authorization for the Township to purchase health insurance for members of the Board of Supervisors. This same article refers to the provisions of the State Insurance Code, 42 P.S. 756.2(a) as permitting the definition of "employee" within any such plan to include elected officials. Based upon these citations you agree with the opinion contained in the Pennsylvania Township News article that the Supervisors in question may be included within the definition of "employee" under these plans and, therefore, may be eligible to participate in such programs. Ross Weiss, Esquire December 23, 1982 Page 3 However, as indicated above, the question of the legal authority, if same exists, to participate in these programs does not necessarily answer the question of the propriety, under the Ethics Act, of the proposed actions of these Supervisors. Specifically, while we question and do not concede that the authority -- either in the Township or Insurance Codes -- to purchase such plan out of Township funds and to include these Supervisors (who do not work in any other capacity for the Township other than as Supervisors), the ethical consideration raised is whether or not these Supervisors can vote in their own direct pecuniary interest in establishing such plan and including themselves within the definition of "employee" under this plan. Specifically, the Commission has previously ruled that the long- standing principle that a public official cannot vote or act in his own direct, personal, pecuniary interest remains applicable notwithstanding the purported existence or authorization to purchase insurance policies in general for "employees ". Any vote that these Supervisors would cast to include themselves in a program of this nature and to alter the definition of "employee" to affect this purpose would, in our estimation, amount to a vote which would be prohibited by the Ethics Act, Section 3(a) as well as the long- standing and obvious principles that a person may not use his public position to benefit himself. See Coltar v. Warminster, 8 Pa. Cmwlth. Ct. 163, 302 A.2d 859 (1973). City Councilmembers v. Consumers Education and Protection Association, Pa. , 428 A.2d 711 (1981). Indeed, the Commission has held that in relation to acquisition of pension policies by supervisors of a second -class township who also serve as roadmasters, such votes and acquisition of cash surrender values associated with such policies violate Section 3(a) of the Ethics Act. See Hoak, 82 -128. Frankly, we continue to seriously question whether the Township Code is specific or sufficient authority upon which to conclude that supervisors, as elected officials, may be generally considered to be "employees" for whom the Township Code authorizes the Supervisors to purchase such insurance. In any event, we need not definitively interpret either the provisions of the Township Code in question or the Insurance Code where the proposal of these Supervisors is to vote in their own interest to establish a plan or alter the definition of the existing plan so as to benefit themselves. In such a situation, even assuming that legal authorization to secure such a benefit is clear, the Supervisors may not, consistent with general principles of law, and the specific requirements of the Ethics Act, undertake such an action. Ross Weiss, Esquire December 23, 1982 Page 4 V. Conclusion: Assuming, without deciding or conceding that the Township Code and or the Insurance Code permit the inclusion of Township Supervisors as "employees" within the definition of that term so as to be eligible to participate in a Township - purchased health and welfare plan (similar to that available to other Township employees), these Township Supervisors may not, consistent with the requirements of the Ethics Act, award such an opportunity and benefit to themselves. The Supervisors retain their characteristics and responsibilities as "public officials." They must, as set forth in Section 1 of the Ethics Act, assure the public that their own interests do not conflict with the pubic trust. These Supervisors may not vote in the manner proposed here to secure this benefit. Finally, we note that if the provisions of the Home -Rule Charter which will be effective in January, 1983, give rise to a different legal or factual situation, you might be best advised to present this question to the Commission again. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. SSC /rdp By the Commission,