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HomeMy WebLinkAbout84-015 HuffMr. Richard A. Huff County Commissioner County of Butler Courthouse Annex, Lafayette Building Commissioners' Suite, 3rd Floor Butler, PA 16001 -5978 October 10, 1984 Re: County - provided Car, Personal use Dear Mr. Huff: I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION 84 -015 You ask whether the Ethics Act would be implicated or violated if you were to accept and use a county - provided car for both personal and county business. You currently serve as a Commissioner for Butler County, hereinafter, the County. The County is a county of the fifth class, governed by a three - member Board of Commissioners. You state that as of this year (1984) the County undertook a new practice of authorizing cars to be provided to the members of the County Board of Commissioners. This practice and authorization was processed by way of a requisition order and auto -lease form. The two Commissioners, other than you, approved this practice /authorization by signing the requisition form. The Controller did not question this form, but you refused to sign the requisition to approve the lease /purchase of the car(s) associated with this requisition and you question the propriety of taking advantage of or using the car so authorized for the Commissioners' use. Specifically, you question the propriety of your using this car because it is supplied to you by the County on the understanding it can be used for both personal (non - County) and County business. Although all costs associated with the lease and use of this car would be provided by the County, you would Mr. Richard A. Huff October 10, 1984 Page 2 not be required, in our understanding, to account for or differentiate the amount of time, use and costs associated with your use of this car for non - County versus County business or purposes. No "municipal" license plates would be attached to this car and no limitations would be placed on its use by you, or we presume, persons authorized by you to operate this vehicle. Under these facts and circumstances, you "feel it is unlawful" for you to "take advantage of the use of this car ", but you have solicited our formal review and opinion as to this question. III. Applicable Law: The law to be applied to this question is as follows: Ethics Act: Section 3. 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. 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. Mr. Richard A. Huff October 10, 1984 Page 3 County Code: § 1608. Payment of certain officers The county solicitor, county jailer, county commissioners, county controller, county engineer, county detectives, county treasurer, interpreter of courts, district attorney and his assistants, and in counties of the sixth, seventh and eighth classes all county officers for whom a salary is fixed by law and the deputies, clerks and employes of their respective offices, shall severally be paid weekly, bi- weekly, simi - monthly, or monthly, at the discretion of the county commissioners of the county. They shall be paid the full amount allowed them by law, but all fees and emoluments whatsoever that may accrue to any of them by virtue of his office shall be paid by him to the county treasurer as directed by Taw, and all other officers shall be paid the amounts assigned them by law in accordance with the provisions of this subdivision. 53 P.S. 1608. § 1605. Officers subject to this subdivision to be paid salaries All county officers to which this subdivision applies, whether elected by the people or appointed according to law, and their several deputies and clerks, shall be paid in by each their services by fixed and specific salaries, which shall be a charge upon the treasury of the county to which each shall respectively belong, to the extent, except as provided in section one thousand six hundred eight, of the fees collected and paid in by each officer respectively, or earned, where fees are chargeable upon the county treasury, and said salaries shall be paid weekly, bi- weekly, semi- monthly or monthly during the month in which the services were rendered, at the discretion of the county commissioners of the county. No voucher check shall be drawn for the payment of any said officer, his deputies or clerks who shall not have filed the receipt and transcript for that month provided for in this subdivision. 53 P.S. 1605. §1609. Salaries in Lieu of Fees Except to the extent this section may be inconsistent with the provisions of any other express provision of this act, the salaries fixed and provided by law for county Mr. Richard A. Huff October 10, 1984 Page 4 IV. Discussion: officers shall be in lieu of all or any moneys, fees, perquisites, or mileage expenses, and other allowances received or allowed to any such officer, and all such moneys, fees, perquisites, or mileage expenses, and other allowances, not governed by the aforesaid exceptions, shall belong to the county and shall be paid into the county treasury, except where required to be paid to the Commonwealth in the manner provided by this subdivision for fees. 53 P.S. 1609. § 1552. Counties of the fifth class The annual salaries of the following county officers of counties of the fifth class shall be as follows: ...The county commissioners, ten thousand two hundred dollars ($10,200), each. 53 P,S� 1552. § 507. Expenses The county commissioners shall be allowed their expenses, necessarily incurred and actually paid, in the discharge of their official duties, or in the performance of any service, office, or duty imposed upon county commissioners. 53 P.S. 507. As a County Commisioner you are a "public official" as defined in the Ethics Act, Section 2, and as such your conduct must conform to the requirements of the Ethics Act. The question you pose here is disarmingly simple: May you use a County - provided and paid car for both County and non - County business and conform to the requirements of the Ethics Act. We conclude that under these circumstances and without the restrictions discussed below, you should continue to decline to take advantage of the opportunity to so use the offered automobile. Our analysis follows. Initially, we note that you have not signed any requisitions or taken advantage of this automobile made available by the County. You are to be commended for your caution in these actions. However, the fact that you have refrained from approving or signing the requisition orders for the vehicle(s) which could be viewed as affirmative action on your part to acquire this automobile, does not end our inquiry. You should not use your office, even under these circumstances, by way of acquisence or acceptance to secure or use something which would constitute "financial gain" other than the "compensation" provided by law. See Section 3(a) of the Ethics Act cited above. Mr. Richard A. Huff October 10, 1984 Page 5 The question that remains is whether the car in question to be authorized or used in this manner is a "financial gain" and not compensation and not provided for by the applicable law, here, the County Code. The concept of financial gain is a broad one. In the ordinary and normal meaning of these terms, the use of a car for your personal use is within the scope of this concept. It is clear that purchasing and operating such a vehicle is an expense most people must bear and thus, the fact you would, without cost to you, be provided with such a vehicle is clearly a financial gain or benefit to you. The next level of analysis is whether this item is to be considered compensation and whether it is provided by law to you. See our analysis of these concepts in Davis, 84 -012 at p. 9 -10. "Compensation" includes the perquisites and expenses associated with this County - provided car. The final level of analysis, however, compels our conclusion that this car, provided in this manner is not provided by law. Specifically, the County Code allows Commissioners to be paid a specified sum, provides for the method of payment of same, and allows "expenses" to be paid to Commissioners incurred in "the discharge of their official duties ". See 53 P.S. 1552 and 1620; 1505 and 1608; and 507, respectfully. Further, the County Code specifies that the salaries so fixed by law shall be in lieu of all other perquisites or mileage expenses except as otherwise set by the County Code. See 53 P.S. 1609. Under these provisions of the County Code it is clear that Commissioners are to be paid "expenses ", but only as related to the discharge of their official duties. There are cases interpreting similar situations in seventh class counties. These cases make it clear that where expenses are charged and reimbursed to such County Commissioners as public officials, strict accounting for same is required and the payments thereof can be made by a county only where incurred on official business. See Susquehanna County Auditors' Report, 118 Pa. Superior 47, 180 A. 148 (1935); Bechak v. Corak, 414 Pa. 522, 201 A.2d 213 (1964); and Benson v. Bradford County et al., 125 Pa. Superior 209 (1937). Payments to County Commissioners made in lump sums, without vouchers or itemizations were at issue in Bechak, for example and were found to be clearly contrary to law. Similarly, in the prior ruling of Susquehanna, County Commissioners were not permitted to collect expenses from the County for travelling from their homes to the County seat to conduct County business. Applying these principles and precedents to the present case makes it clear that the County should be liable to reimburse you only for expenses incurred in discharge of your official duties, that these duties do not include travelling from your home to the County seat to conduct County business, and that if you operated your personally - provided auto on County business a strict voucher or reimbursement procedure, with strict and rigid accountability as set forth in Susquehanna, supra at p. 57 is required and provided for by law. Should the result be any different when the auto in Mr. Richard A. Huff October 10, 1984 Page 6 question is purchased or leased and run by the County? To ask the question is to answer it; and the answer is especially obvious when, as here, you indicate that not only are you not required to account for the use of this car, but also that you may use this County - provided car for purely personal and non - County business. Surely, if the law allows reimbursement to you of expenses for operating your personally - provided auto only where strictly and accurately documented and where related to performance of your duties as Commissioner, you should not presume the law to provide you with greater latitude where the County is providing and maintaining the vehicle. We do not dispute that the County is certainly free and legally able to decide to provide such an auto. We have previously concluded, for example, that while a County could properly provide a Commissioner with telephone credit cards for calls presumable relating to official business, the use of this credit card by the Commissioner's wife and son without reimbursement to the County violated Section 3(a) of the Ethics Act. See Willard, No. 289. Thus, should you acquire and use this vehicle under these circumstances from the County you should operate this vehicle on the same basis as you would if you were using your personal auto and seeking reimbursement from the County for same. To use the County - provided car for your non - County related -items without proper accounting and reimbursement to the County would be contrary to the letter and spirit of the Ethics Act. If you acquire this car and use same for non - County matters you should make arrangements with the County for reimbursing the County for such use. V. Conclusion: We appreciate the fact that you asked for this opinion prior to engaging in this activity but to acquiese in and or to use this County - provided car under these circumstances and the applicable law for non - County matters would result in your acquisition of a financial gain other than the compensation provided to you by law. If you use this vehicle for personal purposes unrelated to the discharge of your duties as a County Commissioner you should make appropriate arrangements to reimburse the County for same. 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. Mr. Richard A. Huff October 10, 1984 Page 7 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. SSC /na B the Commi sion HERBE'T B "INNER Chairman