HomeMy WebLinkAbout83-010 FloodMr. David A. Flood
139 West High Street
Lock Drawer 599
Bellefonte, PA 165823
L ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
June 20, 1983
OPINION OF THE COMMISSION
RE: Board of Supervisors; Wage Approval; Conflict of Interest
Dear Mr. Flood:
I. Issue:
83 -010
As Solicitor for Boggs Township, you ask whether a Township Supervisor
who is also a road worker may approve his own work hours, work records, and
wages with the concurrence of one Supervisor and over the objection of another
Supervisor.
II. Factual Basis for Determination:
You write that the Township of Boggs is a second -class Township located
in Centre County, Pennsylvania. The Township Board of Supervisors, consisting
of Supervisor A, Supervisor B, and Supervisor C, has reached an impasse
relative to the hiring, assignment, and pay of Supervisors working on the
roads as permitted by the Second -Class Township Code.
Supervisor A was recently employed to work on the roads part -time in
accordance with an action taken at a meeting held January 3, 1983, and
pursuant to the Second -Class Township Code, 53 P.S. 65514. Although not part
of a carried motion, it is the position of Supervisor A and B that Supervisor
A is to work upon the roads so long as there is work to be done on them. You
state that the rationale for the position is to eliminate overtime work which
had been paid to Supervisor C and a roadmaster. Supervisor C, who prior to
his election was a Township road employee, was upon his election appointed to
continue as a full -time road - worker (40 hours per week). The work to be done
on the roads is determined by the Supervisors at a weekly conference where the
week's work is reviewed and the following week's work is programmed. Notably,
the worker designated as Roadmaster was recently relieved of that title
because pursuant to the Township Code P.S. 65514) a Township shall not
employ a roadmaster /superintendent if Supervisors work on the roads.
-fir. David A. Flood
June 20, 1983
Page 2
IV. Discussion:
All wage rates for supervisors have been duly approved by the Township's
Auditors in accordance with law, Supervisor A's wage rate was approved as a
part -time rate. However, Supervisor C has been protesting payments of wages
to Supervisor A. The wages of both Supervisor A and C are approved by the
Board of Supervisors together with their time sheets and other records, which
are kept in accordance with the Second -Class Township Code. As a result of
the protest of Supervisor C, Supervisor A is in the position of approving his
work hours, work records, and wages with the concurrence of Supervisor B.
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.401.
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).
Initially, the Ethics Commission notes that, as a statutory entity, its
jurisdiction and its power are strictly limited to the authority granted it in
65 P.S. 401 et seq. Thus, it has no authority to interpret and /or enforce the
provisions of other codes, for example, the Second -Class Township Code, 53
P.S. 65514 et seq., and this opinion should not he construed as clearance to
act under other Commonwealth laws.
Mr. David A. Flood
June 20, 1983
Page 3
The State Ethics Act, 65 P.S. 401 et seq., requires that the conduct of
public officials "present neither a conflict nor the appearance of a conflict
with the public trust." In this regard, it is clear that Supervisor A's
ability to approve his own work hours, records, and wages represents or
creates an inherent conflict or appearance of a conflict with the public
trust.
Section 3(a) of the Act, 65 P.S. 403(a), prohibits a public official from
using his public office or confidential information gained by virtue of his
holding public office to obtain financial gain other than compensation
provided by law for himself or a member of his immediate family. The purpose
of the Act is to strengthen public confidence in government by avoiding even
the appearance of a conflict of interest. See Section 1 of the Ethics Act, 65
P.S. 401. In this regard, while the Second -Class Township Code permits
Supervisors to appoint themselves as roadworkers /superintendents or
roadmasters (53 P.S. 65514) and allows the auditor to fix the compensation for
such workers (53 P.S. 65515), there is no general statutory directive
designating who decides or should decide how the amount of hours to be worked
is to be established. Thus, while the Board of Supervisors may hire one of
the Supervisors or appoint all or any of the Board as roadworkers, the
question of approval of actual work hours and records of a Supervisor, is left
open in the Township Code.
However, the Township Code does make it clear that only the Board of
Supervisors, as a unit, can legally bind the Township. Hence, we must
conclude that it is the;duty and 'responsibility of the Supervisors to decide,
without our intervention or direction, which work needs to be done. All
Supervisors can and should exercise their discretion to generally decide what
work needs to be done on the roads. Likewise, it would have to be action by
the Supervisors which would bind the Township to pay for the work or order the
work in question to be performed. The Supervisors, in appointing Supervisor C.
as a full -time road - worker, have already authorized Supervisor C to perform 40
hours of work but this authorization does not include approval for overtime.
Clearly, the Board acted to undertake their responsibility to decide what work
needs to be done with respect to Supervisor C's basic 40 -hour work week.
Likewise, Supervisor A was given approval to perform part -time work. While we
believe all Supervisors have a duty to decide what work generally must be
done, we find no authority which would allow any Supervisor to participate in
the decision which would enure to his own benefit, that is, the setting of his
own hours by assigning specific portions of the generally required work to
himself (thereby increasing his own pay) or to set his own specific work
assignments, schedule, hours and, therefore, pay) beyond that generally
established by virtue of the Supervisors action to appoint a particular
Supervisor as a full -time or part -time road - worker.
Mr. David A. Flood
June 20, 1983
Page 4
The Ethics Act distinguishes non - ministerial from ministerial action and
the State Ethics Commission has applied this concept to allow public officials
to take part in ministerial actions. Ministerial actions are routine
non - discretionary procedural steps taken to implement prior binding decisions,
for example, payment of a monthly bill for services and costs set forth in a
contract previously approved. In this case, the prior agreements included
approval of a 40 hour work report for Supervisor C, a part -time position for
Supervisor A, and the salary and wage rates for both positions.
In addition, during the annual inspection of the roads and their weekly
work conferences, the Supervisors agree generally on what work needs to be
done.
The approval of pay to both Supervisors C and A, subsequent to the
decision that each should be employed full or part -time, is a ministerial
action which could not be reasonably avoided once the non - ministerial actions
are decided. Because these actions are ministerial, both Supervisors may vote
on the payment of their salary and wages as long as the payment is within the
parameters of the agreements previously made.
However, overtime for Supervisor C (for work in excess of 40 hours) was
not generally approved by prior agreement and thus, is a non - ministerial
action. Supervisor C may not participate in decisions on the number of hours
of overtime work to be done, the approval of rate, or payment for his own
overtime.
Supervisor A is also bound by these requirements. The Township has
established a part -time position and the wage rates for that position. The
Township has also defined a part -time position as one which does not include
benefits. The Township, for example, could define this position by reference
to a range of hours (up to 30 hours) in general, with the participation of
Supervisor A. However, SupervisorA, like C, cannot participate in decisions
to change the agreement, either by extending his hours worked beyond those
associated with the part -time classification or the rate of pay.
If changes in either the agreement of Supervisor C or Supervisor A are
required, neither of them may participate in the non - ministerial actions
needed to make these changes.
We must emphasize, however, that the Commission is not empowered to, nor
should we assume the task of deciding, under the guise of the Ethics Act,
which roadwork should be done. The Boggs Township Supervisors, the duly
elected representatives of the people, have this responsibility.
fir. David A. Flood
June 20, 1983
Page 5
V. Conclusion:
While the Commission recognizes the difficulty of the situation where
Supervisor A is unable to vote on his own hours and Supervisor B and C voting
against each other with regard to Supervisor A, compliance with the Ethics Act
mandates Supervisor A's abstention in such a situation because his affirmative
vote would clearly constitute use of his public office for financial gain. If
Supervisor A or another Supervisor were designated (without his participation)
as Roadmaster /Superintendent, some degree of objectivity may return. In any
event, these Supervisors and they alone, must be ready to lay aside personal
concerns, and decide what work must be done to meet the publics' needs and
then step aside where the specific question of assigning that work to
themselves, is at issue.
Under 65 P.S. 401 et seq., neither Supervisor A nor Supervisor C may vote
to approve their own work assignments, hours, or records. While Supervisor C
may vote on Supervisor A's hours and wages, and Supervisor A may vote on
Supervisor C's specific work assignments, hours, and wages, neither may vote
to approve their own assignments and thus hours and total wages. A vote is an
exercise of authority and cannot be used or witheld for one's personal
financial gain, directly or indirectly, and failure to vote to insure
continued overtime for oneself has an appearance of a conflict of interest and
must be avoid. Although, an impasse may exist in this situation, the
Commission is confident that the Board of Supervisors will establish a
procedure whereby it decides as a group which work is to be done and then may
be able to solve the particular problem of how to apportion work to
individuals either by appointing one of its members as Superintendent or
Roadmaster or otherwise. Conceivably, when the auditors fix the amount of
compensation for Supervisor A as a "part- time" work -rate, they could order
this rate applied to hours worked by Supervisor A within a particular range of
hours, to which the "part- time" designation would apply. However, we can
speak authoritatively on the application of the Ethics Act; the Township
Supervisors must decide the needs of the Township.
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.
'Fir. David A. Flood
June 20, 1983
Page 6
CW /rdp
Finally, any person may request within 15 days of service of the opinion
that the Commission reconsider its opinion. The person requesting
reconsideration should present a detailed explanation setting forth the
reasons why the opinion requires reconsideration.
By the Commission,
CAP -
PAUL J. SMITH
Chairman