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HomeMy WebLinkAbout90-004 Keiter1990. I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Robert W. W. Thomas G. Sieber Dennis C. Hughes, Chair Brown, Vice Chair Andrews Pancoast Harrington DATE DECIDED: February 23, 1990 DATE MAILED: March 6, 1990 Mr. David C. Reiter, Esquire Seidensticker, Keiter & Baughman 25 South Queen Street York, PA 17403 90 - 004 Re: Conflict, Tax Collector, Second Class Township, Hospitalization Plan, Participation at Own Expense. Dear Mr. Keiter: This Opinion is issued in response to your request of January 10, Whether a tax collector in a second class township under the Public Official and Employee Ethics Law may participate at his own expense in the township hospitalization plan. II. Factual Basis for Determination: As the solicitor for Manchester Township, York County, you seek clarification regarding the issue of whether the township tax collector may continue to participate in the township hospitalization plan at his own expense. The current tax collector has participated in the township plan at his own expense for a number of years. Since the enactment of Act 41 of 1988 which made certain amendments to the Second Class Township Code regarding insurance coverage, you inquire as to whether the tax collector may continue his participation in the program at his own expense. You cite Domalakes, 85 -010, wherein we ruled that a borough tax collector could not receive insurance benefits at the borough's expense but could participate at his own expense. The State Association of Second Class Townships has taken the position that no township official, aside from supervisors, may participate in the insurance plan under any circumstances. You Mr. David C. Reiter Page 2 reference two sections of the Second Class Township Code which deal with insurance benefits for supervisors and other second class township officials. Non - employee supervisors may participate in the township insurance plan at their own expense pursuant to 53 P.S. 565515. However, Section 53 P.S. 565713, which prohibits participation by all other township officials paid in whole or part by the township, does not address the question of participation by other employees and officials at their own expense. You note that 53 P.S. 565713 neither prohibits nor authorizes such participation at the individual expense of other employees /officials. You submit that the silence of the foregoing provision of law might be construed to indicate that the other officials and employees may not participate at their own expense because 53 P.S. §65515 only authorizes such participation for non - employee supervisors. Since the tax collector is desirous of continuing to participate in the township plan at his own expense rather than purchasing individual coverage, you inquire as to whether such action would be permissible under Act 41. III. Discussion The tax collector for Manchester Township, York County, is a public official as that term is defined under the Public Official and Employee Ethics Law. 65 P.S. 5402; Allen, Order 612. As such, the conduct of such an official must conform to the requirements of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. In addition, the Ethics Law defines the following terms: "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public Mr. David C. Keiter Page 3 employee, a member or his immediate family or a business with which he or a member of his Immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In determining whether the tax collector may participate in the township hospitalization plan at his own expense, we cannot address the question of whether such participation is permissible under Act 41 of 1988. Since we do not have jurisdiction to interpret the provisions of the Second Class Township Code, our determination in this case is limited expressly to the propriety of such participation under the Ethics Law. Although it is beyond the scope of this Commission to interpret laws other than the Ethics Law, it may in certain instances be necessary for us to review certain provisions of other laws to the extent that those laws impact upon the Ethics Law. The Second Class Township Code provides for participation of supervisors in township insurance plans as follows: Supervisor - employees and their dependents shall be eligible for inclusion in group life, health, hospitalization, medical service and accident insurance plans paid in whole or in part by the township. * * * Supervisors and their dependents, whether or not they are employed by the township, shall also be eligible for inclusion in township group life, health, hospitalization, medical service and accident insurance plans if they pay their pro rata share of the premium. 53 P.S. 65515(c)(1), (4). Mr. David C. Reiter Page 4 The Second Class Township Code also has a general provision regarding participation in insurance plans: Elected officials, except township supervisors who are provided for in section 515, and appointed township officials who are not employees of the township shall not be eligible for participation in any life, health, hospitalization, medical service or accident insurance coverage contract paid in whole or in part by the township. 53 P.S. 65713(d)(1). As noted above, our determination must be based upon the requirements of Section 3(a) of the Ethics Law. Section 3(a) of the Ethics Law provides in part that a public official may not use the authority of office to obtain a private pecuniary benefit for himself. The specific question becomes whether participation by a second class township tax collector at his own expense in the ' township hospitalization program would constitute a use of authority of his office to obtain a private pecuniary benefit for himself. Holding in abeyance the issue of whether there is use of authority of office, it is clear that there would be a private pecuniary benefit. Participation in the township group plan at one's own expense would produce comparable coverage at a lower rate than if individual coverage were purchased. The difference in premiums for group versus individual coverage would constitute the amount of the private pecuniary benefit. Since the coverage is an individual benefit, that the pecuniary benefit would be inuring to "himself ". Having established the second and third criteria, we must now address the question as to whether participation at his own expense would constitute a use of the authority of office. Although we have not as yet under Act 9 of 1989 determined whether such action could be a use of authority of office in this factual context, we have rendered a decision on a similar issue under Act 170 of 1978. In Lussi, Order 713, the issue was whether a tax collector of a first class township violated Section 3(a) of Act 170 of 1978 when he received at township expense health care coverage. Although in that case there was no provision in law which would authorize a tax collector to receive township paid insurance benefits, we found no violation because there was no showing under the facts and circumstances of that case that the tax collector had used public office to obtain those benefits. Although the cited Order is not dispositive of the instant matter because Act 9 of 1989 provides a statutory definition of the term use of authority of office, we must conclude, based upon the reasoning in the Lussi Order, that there would not be the requisite use of authority of office in this case if the tax collector would participate in the township program. Mr. David C. Reiter Page 5 Since the program would be established by action of the board of the township supervisors, participation by the tax collector at his own expense would not constitute a use of authority of office under these particular facts. Section 3(a) of the Ethics Law would not impose any prohibition upon the participation by the tax collector. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed in this opinion is whether such participation is permissible under the Second Class Township Code. IV. Conclusion: A tax collector for a second class township is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law does not prohibit a second class township tax collector from participating in a township group insurance plan at his own expense. The propriety of his participation under the Second Class Township Code has not been addressed. 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 on the advice given. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission* sue/ elena G. Hughes, Chair