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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