HomeMy WebLinkAbout85-020 BiglerMr. Harry F. Bigler
Clearfield County Commissioners
Courthouse
Clearfield, PA 16830
I. Issue:
II. Factual Basis for Determination:
III. Discussion:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
October 23, 1985
85 -020
Re: County Officials; Expense Allowances; Retention of Excess Funds
Dear Mr. Bigler:
This responds to your request for the opinion of the State Ethics
Commission.
Whether county officials may retain excess expense allowances paid in
relation to State Association Conventions.
As chairman of the Clearfield County Board of Commissioners, you have
requested the opinion of the State Ethics Commission. The County Code
provides for the formation of various state associations of county officers
and further authorizes annual meetings of said associations for the purpose of
resolving questions arising in the discharge of the functions and duties of
such officers. The County Code also provides for the payment of expenses and
mileage costs for those officers attending these meetings. The County Code in
this respect, references to a specific dollar amount. You have asked whether
county officials are entitled to receive and retain this specific amount
regardless of the actual amount expended by the official for attending such
annual meetings. Specifically, you ask whether the official may personally
retain amounts in excess of the funds actually expended or whether such funds
must be returned to the county.
Our review of the question must be based upon the provisions of the State
Ethics Act. In interpreting the duties and responsibilities of public
Mr. Harry F. Bigler
October 23, 1985
Page 2
officials and employees, there are occasions where our interpretation of the
Ethics Act must, of necessity, be based upon other provisions of law and
relevant judicial decisions. See Weaver, 85 -014; McCutcheon v. State Ethics
Commission, 77 Pa. Commw. 529, (1982).
Generally, the Ethics Act provides that:
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(a).
In order to determine whether a public official would be in violation of
this provision of law, it must naturally be determined if the financial gain
that the official has obtained through his public office is part of the
compensation provided by law. The County Code provides the relevant statutory
provisions in making this determination.
As noted, the County Code applicable to a county of the Sixth Class, such .
as Clearfield County, provides for the payment of expenses to county officials
in relation to attendance at the annual meeting of the state association of
such officials. That Section, in its relevant part, provides as follows:
a) The expenses of all authorized county officers
attending the annual meetings of their associations shall
be paid by the several counties out of general county
funds. Each of these officers, except the county
commissioners, shall be allowed for his expenses not to
exceed ninety dollars ($90) per pay day for the number of
days specified in subsection (b) of this section, together
with mileage going to and returning from such meeting.
The expense allowance shall be paid for each day not in
excess of two in going to and returning from such
meeting. 16 P.S. §443
The essential determination to be made is whether the above provision
allows the outright payment of $90 to officials attending the annual meetings
or whether such payment must be based upon actual expenses incurred with any
excess funds reverting to the county.
If the latter of these positions is effective, then any funds in excess
of the actual expenses, if personally retained by the official, would be a
financial gain other than the compensation provided by law obtained in and
through the official's positions.
Mr. Harry F. Bigler
October 23, 1985
Page 3
We do note that in relation to county commissioners, the per diem
expense allowance of §443, supra, is not applicable. The only provision of
law otherwise relating to the expenses of a county commissioner provides
that:
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. 16 P.S. §507
This provision clearly and unequivocally states that county commissioners are
to be paid expenses in relation to their official duties "necessarily
incurred" and "actually paid." Thus, a county commissioner is only entitled
to reimbursement for the actual amount expended in relation to his official
duties. See Huff, 84 -015; Bechak v. Corak, 414 Pa. 522, 201 A.2d 213,
(1964).
With relation to the other county officials, the determination of this
matter must focus upon the interpretation of the phrase "not to exceed ninety
($90) dollars." It must be determined whether this phrase authorizes an
absolute expense payment of that amount or whether it requires the payment
only of the actual expenses incurred not going above that amount.
The term not to exceed "_ ,generally must be reviewed pursuant to its
common usage. 1 Pa. C.S.A. §1902. The term is clearly one of maximum
limitation and within that limitation is a duty to establish a claim. See,
e.g. Lyme v. Olewine, 67 Dauph. 183, (1954).
In this respect, a review of the statutory history of Section 443 is
instructive. Prior to amendment that provision provided as follows:
The expenses of all authorized county officers
attending the annual meetings of their associations shall
be paid by the several counties out of general county
funds. Each of these officers, except the county
commissioners, shall be allowed for his expenses twenty
dollars ($20) per day for the number of days specified in
subsection (b) of this section, together with eight cents
per mile in going to and returning from such meeting.
1955, Aug. 9, P.L 323 §443, 16 P.S. §443.
Judicial decisions have interpreted the specific language of the above
provision of law, as requiring a flat or fixed disbursement.
Mr. Harry F. Bigler
October 23, 1985
Page 4
In this connection the specific language of the act
will be noted. . . "shall be allowed for his expenses."
The act does not contain such phrases as "an amount not
exceeding" or "on account of" or "up to" or "not in
exceess of," or other language which would convey such an
inferred legislative intent. Had such been the intent of
the legislative enactment, any one of several well known
phrases would have been inserted i n the legislative
language. Walker v. Somerset County, 26 D. &C. 2d 775,
(1961).
Subsequent to this decision, the language of Section 443 was, in fact, amended
to contain one of the "well known phrases," i.e., "not to exceed." Based upon
this, it would now appear that the payment of expenses to county officials for
attendance at annual association meetings is not to be a flat or fixed sum.
A number of judicial pronouncements have interpreted other provisions of
law regarding expense allotments of a similar nature and have held that public
officials including, county commissioners, controllers and sheriffs were
entitled only to the expenses actually incurred. 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).
These cases were based upon the well — settled and long — standing concept
that a public official may not receive more compensation than that which is
fixed by law. Warminster Township Appeal, 56 D &C 2d 99, (1971); Appeal of
Kestler, 66 Pa. Commw. 1, 444 A.2d 761, (1982).
In this situation, we believe that based upon the amendment to Section
443 of the County Code that it was the legislative intent to reimburse county
officials only for the actual expenses incurred up to and no more than $90 per
day. We, thus, believe that the term not to exceed" requires the payment of
actual expenses incurred and not a flat or fixed sum of $90 per day.
In light of the foregoing, we believe that because the County Code only
allows expense reimbursement for actual expenses incurred at the annual
officers meetings not in excess of $90, funds received in excess of actual
expenditures would constitute financial gain other than the compensation
provided by law. Public officials who, through their official position,
receive and retain said excess funds would thus be in violation of Section
3(a) of the Act.
We note in closing, that this opinion relates only to the specific
provisions of the County Code addressed herein, and should not be read to
apply to other statutory provisions not here addressed.
Mr. Harry F. Bigler
October 23, 1985
Page 5
IV. Conclusion:
County officials are only entitled to receive expense allowances as
actually incurred up to and not exceeding $90 per day for attendance at the
annual meetings of their state associations. Any funds in excess of this
amount received and retained by said officials through their official
positions would constitute financial gain other than the compensation provided
by law in violation of the State Ethics Act.
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.
JJC /sfb
By the Comp ssion,
HER RT B. CONNER
Ch.irman