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HomeMy WebLinkAbout85-025 KingThomas W. King, III, Esquire Dillon, McCandless and King Attorneys at Law 12.8 West Diamond Street Butler, PA 16001 Dear Mr. King: I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17t20 December 5, 19R5 OPINION OF THE COMMISSION R5 -025 Re: Township Supervisor Participation in Appointment as Township Secretary /Treasurer This responds to your request for the opinion of the State Ethics Commission. Whether a township supervisor may participate in her own appointment as the township secretary /treasurer, for which she will he compensated. You serve as Solicitor for Middlesex Township, Butler County, Pennsylvania. This is a township of the second class. You indicate that at the Septemher 16, 15335, regularly scheduled hi- monthly meeting of the township hoard of suprvisors, Township Supervisor, Darlene S. Weinzetl, was appointed to the position of township secretary by a vote of 2 to 1. A motion to appoint Ms. Weinzetl as township secretary was introduced by motion of the Chairman of the Board of Township Supervisors, Bernard J. Fell. A dissenting vote was cast by Township Supervisor, Rohert Dunlap and Ms. Wenzetl voted in favor of the motion. The basis for Weinzetl's participation in this matter was grounded upon her belief that her appointment would he in the best interest of the township. The previous township secretary had resigned from that position in August of 1985. In a letter to you, both Supervisors Fell and Weinzetl indicated their belief that she was the best qualified person for this particular position. They indicated that because township secretaries are appointed every January they felt that it would he unfair, if not impossible, to hire a secretary and train that person to work for a period of several months, especially if that person was not guaranteed some type of Thomas tl. King, III, Esquire December 5, 1985 Page 2 re- appointment by a new incoming hoard. They indicated that Ms. Weinzetl was familiar with the record - keeping system for the township and is also familiar with township and municipal affairs. The township hoard of supervisors have requested that you ohtain an opinion from the State Ethics Commission regarding the propriety of Ms. Weinzetl 's action in relation to the foregoing situation. III. Discussion: The question, as set forth above, presents various concerns that have not heretofore been addressed by the State Ethics Commission. A review of this situation indicates that various statutory provisions must be reviewed in order to resolve the issue under consideration. The Ethics Commission, of course, may only review the particular obligations and duties of public officials and employees within the purview of the State Ethics Act. In interpreting the duties and responsibilities of such officials and employees, there are occasions where our interpretation of the Ethics Act must, of necessity, he based upon other provisions of law and relevant judicial decisions. See Bigler, R5 -020. Generally, the Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his puhlic office or any confidential information received through his holding puhlic office to ohtain 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 addition to that provision of law, the State Ethics Commission may also address other areas of possible conflicts of interest. 65 P.S. b403(d). Our review of the instant matter must focus upon the activities of the township supervisor involved herein within the purview of the above provisions of law. It is without question that a township supervisor in a second class township is eligible to serve as the township secretary or treasurer or secretary /treasurer at the same time that such person serves as township supervisor. 53 P.S. X65410. Specifically, the township code provides that the secretary /treasurer, secretary or treasurer, may or may not he a member of the board of township supervisors. 53 P.S. r$65510. It is also clear that the compensation of a township supervisor who serves in that position must be fixed by the township board of auditors. 53 P.S. 65531, .565540. While the General Assembly, through the Second Class Township Code, and the aforecited provisions of that code has clearly provided that township supervisors shal 1 be eligible to hold the position of township secretary /treasurer, no specific indication of whether a township supervisor may participate in their own Thomas W. King, III, Esquire December 5, 1985 Page 3 appointment was provided for in the township code. As a result, our interpretation of whether such activity is permissible must he based upon the legislative intent of the Second Class Township Code provisions as well as the State Ethics Act. The cases are many which set forth the general puhlic policy regarding the participation of a puhlic official in matters wherein such official has a personal interest. Generally, the courts of this Commonwealth have been adamant in upholding the principle that wherever a public official has a direct personal interest in a matter under consideration by the puhlic body of which they are a member, such official is disqualified from voting thereon and if his vote is determinative, the action is void. See Reckner, et. al. v. German Township School District, 341 Pa. 369, A.2d , (1941). See also, Genkinger v. New Castle, 368 Pa. 547, 84t2d 303 McCreary v. Major, 343 Pa. 355, 22 A.2d 686, (1941); Commonwealth v. Raudenbush, 249 Pa. 86, 99 A. 555 (1915); Meixell v. Hillardtown Borough, 370 Pa. 420, 88 A. ?.d 594, (1952). All of the above cases, of course, have recognized the inherent power of the General Assembly to declare the puhlic policy of the fommonwealth and to confer upon public officials the power to appoint themselves to other positions and to fix their own salaries. These decisions have simultaneously recognized, however, that unless the intention is clear, the power will be denied because of the exceptional and extraordinary character of such power. In Reckner v. German Township, supra, the Supreme Court of Pennsylvania elaborated upon this concept stating that: "It necessitates an implicit direction on the part of the legislature to overthrow such a wholesome and salutary rule of the common law as that precluding a public servant from simultaneously representing both himself and his constituents. As pointed out in Goodyear v. Brown, 155 Pa. 514, 518... it does not follow that everything may be done by a public officer that is not forbidden in advance by some act of assembly." Thus, in Reckner, supra, a school director was not permitted to vote for an increase in his salary for service as the school board's secretary. The court noted that the School Code, while allowing such service, was silent on the question on compensation and on the question presented in Reckner. Because of this lack of a specific direction, the court ruled that the hoard member was disqualified from voting on the increase of his salary. In the instant situation, of course, the township board of supervisors do not have the authority or power to fix their compensation when serving as secretary /treasurer. Such power is reserved exclusively for the township board of auditors. Thus, it can be argued that the precedent established by the Supreme Court of Pennsylvania and the previous decisions is not applicable. In support of this logic is the case of Lach v. Defigio, 9 D&C 2d. 32.6, (1956), where the court reviewed a similar question under the Public School Code. That Code particularly allowed members of the school hoard and Thomas W. King, III, Esquire flecember 5, 1985 Page 4 school districts of the third and fourth class to he appointed as the secretary /treasurer of the school board. 24 P.S. $4 -403. In Lach the court ruled that there was nothing in the Public School Code to prevent a school di rector from voting for his own election to the office of secretary or treasurer. He could not, however, lawfully cast the deciding vote to fix the salary for himself and where this had heen done any salary received hy the officer would be deemed to have been taken unlawfully. Thus, there is support for the concept that the actions of a township supervisor of a similar nature are not prohibited by the Second Class Township Code. This, however, seems to ignore the clear public policy set forth in the previously cited Supreme Court decisions that indicate that because a matter is not specifically addressed hy the legislature does not necessarily mean that it is authorized. Additionally, it is important to note that the Lach case was decided prior to the enactment of the Ethics Act. The Ethics Act was, in part, promulgated in order to codify the well established public policy prohibiting public officials from acting in matters where they have financial or pecuniary interest. In this respect, the purpose and intent of the Act was clearly established by the legislature. Section 1 of the Act provides that: 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 he liberally construed to promote complete disclosure. 65 P.S. 401. It must thus be determined if the activities of the township supervisors in voting to appoint themselves as township secretary /treasurer constitutes such a use of public office as to occasion a conflict between the financial interest of the supervisor and the public trust. The Second Class Township Code does not mandate that the secretary /treasurer he a township supervisor. It merely permits that situation to occur. In this respect, the township board of supervisors or a majority thereof have the discretion to appoint a secretary or treasurer who is not a member of the board. Thus, if there is a decision of less than unanimity, a township supervisor who votes for him or herself to secure the position of secretary /treasurer could be considered to Thomas W. King, III, Esquire December 5, 1985 Page 5 he placing oneself in conflict with the public trust. This is particularly so, if the position of secretary /treasurer has, in the past, been one for which compensation has been fixed by the hoard of auditors. It could thus he perceived that the township supervisor would he placing himself in a position to receive compensation even though that person does not actually set the amount of such compensation. This type of activity, while it may he considered an indirect benefit is nonetheless not so remote as to completely alleviate the concerns that gave rise to the promulgation of the Ethics Act. In making our determination in this particular matter, we have devoted considerable effort to determine the legislative intent behind the State Ethics Act and the affect that Act has had upon the other provisions of law involved herein, i.e. the Township Code. The rules of statutory construction mandate that we attempt to determine the legislative intent in this matter. We have noted that one of the key elements involved in establishing such intent is to consider the mischief to he remedied as well as former law on particular subjects now covered by statute. See 1, Pa. C.S.A. 51910. The prior law on matters of a similar nature, of course, is clearly set forth by the previously cited court decisions. In addition, the Ethics Act was established in order to remedy particular problems that had been occasioned by situations where public officials had acted in order to forward their own interest rather than the interest of the public. In addition to the foregoing, we must presume that the General Assembly intended to favor the public interest as against any private interest. This presumption is specifically authorized by law. 1 Pa. C.S.A. 51922(5). Based upon these principles of statutory construction, it is our conclusion that a township supervisor may not participate in his or her own appointment as the secretary /treasurer if the supervisor will receive compensation for such appointment. We believe that such activity would violate both the intent and spirit of the Ethics Act. While we realize that some may find our decision regarding the interpretation of the Ethics Act in conflict with the provisions of the Second Class Township Code, it is our belief that both statutes may be given full effect as any conflict that may exist is not irreconcilable. Such a result is mandated. See, 1 Pa. C.S.A. .51933. While we believe that the Second Class Township Code allows township supervisors to simultaneously serve in the position of township secretary /treasurer, we do not believe that it speaks to their eligibility to participate in the appointment process. That aspect of the instant question is now controlled by the State Ethics Act. See, e.g. Reckner, et. al. v. German Township School District, 341 Pa. 375, At 378. Additionally, even if both statutes were considered to present a conflict that was irreconcilable, the specific provisions will control over general provisions unless the general provision was enacted after the specific provisions were enacted and it shall then be the manifest intention of the General Assembly that the general provision shall prevail. 1 Pa. C.S.A. 51933. Here the general provisions of the State Ethics Act were promulgated Thomas W. Ki ng, I II, Esqui re December 5, 1985 Page 6 and passed at a point in time later than that of the more specific provisions of the Second Class Township Code. Additionally, the General Assembly has clearly indicated its intent that the Ethics Act shall prevail in such situations and, as such, it's specifically set forth in the State Ethics Act that: IV. Conclusion: Based upon all of the foregoing, we conclude that a member of the board of township supervisors in a township of the second class may not participate or vote to appoint him or herself as the township secretary, treasurer, or secretary /treasurer if the supervisor will be compensated. Such actions by a public official would be in violation of Section 3(a) of the Ethics Act. The other members of the board may, of course, appoint this supervisor to that position and compensation may be paid in accordance with the law. Because of our decision herein, we note that Ms. Weinzetl must forego the compensation that has accrued to date. 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 requi res reconsideration. JJC /sfb Section 12. Conflict of law. If the provisions of this act conflict with any other statute, ordinance, regulation or rule, the provisions of this act shall control. 65 P.S. 412. Ry the HER RT B. CONNER Chairman fission,