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HomeMy WebLinkAbout90-007 MeansMr. Charles Means, Esquire Market, Schaffer & Means, P.C. 1120 Grant Building Pittsburgh, PA 15219 Dear Mr. Means: 1990. I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley DATE DECIDED: March 30, 1990 DATE MAILED: juy 1, 1990 II. Factual Basis for Determination: 90-007 Re: Conflict, Supervisors, Roadmasters, Township Paid Benefits, Life Insurance, Limited Working Hours. This Opinion is issued in response to your request of January 16, Whether second class township supervisors under the Public Official and Employee Ethics Law may receive township paid life insurance benefits if they work a total of eight hours a year as road - masters. As solicitor for Harmar Township, a second class township in Allegheny County, you request an advisory opinion as to whether township supervisors who are employed as roadmasters may be eligible to receive township paid group life insurance benefits. After referencing 53 P.S. 65515, the provision in the Second Class Township Code which sets forth the compensation for supervisors, you note that all township supervisors have through formal action been appointed to serve as township roadmasters. Pursuant to 53 P.S. 65515(c) all of the supervisor /roadmasters conduct road and bridge inspections during the months of April and October of each year. Every township road is inspected and each supervisor / roadmaster personally participates in these actions which are publicly advertised. The supervisor/ roadmasters have no duties as employees other than conducting the Mr. Charles Means Page 2 inspections which amount to eight hours per supervisor per year. The compensation of $14.31 per hour for a supervisor serving as a road - master has been approved by the township auditors. Article 19 of the Township Collective Bargaining Agreement has been supplied which provides as follows as to life insurance: The Township agrees to pay the premium for each employee to maintain a $20,000 term life insurance policy with an insurance carrier of the Township's choice for the term of this Agreement. At retirement, employees will receive a $5,000 paid up term life insurance policy with the entire cost paid for by the employer. After noting that the Agreement does not require a minimum of working hours for employee eligibility for insurance, the township insurance agent states that the insurance coverage continues as long as the individual is designated as a township employee. Although there are no other township employees who work such limited working hours per year, you assert that any township employee could receive the life insurance benefits even if they only worked a total of eight hours a year. In particular, you argue that supervisor /roadmasters are township employees under Section 515 of the Township Code and are required under Section 516 to inspect all roads which they are charged by law to maintain. The twelve miles of township roads take about one half day to inspect. Because performing road inspections subjects the supervisors to the risks attendant with driving and walking along the roads, you suggest that life insurance serves a reasonable purpose of offering protection to the potential of a fatal accident occurring while carrying out their mandatory inspection duties. You cite Savage v. Township of Mt. Pleasant, 119 Pa. Super 392, 181 A.519 (1935) for the proposition that a supervisor who would be injured while serving as a roadmaster would be entitled to workmen's compensation. You argue that it would be inconsistent to have two different rules for life insurance and workmen's compensation which are both based upon protecting an individual from risks incurred because of his employment. In addition, you assert that it would be illogical to have a result which would be dependent upon the length of the township roads, that is, if a township had extensive roadways, the inspection might take weeks which would clearly justify life insurance benefits. You conclude that a denial of benefits which is based ultimately upon the size of the township would discriminate against the supervisors of small townships without any reasonable basis. You conclude by requesting an advisory as to whether the supervisor /employees may receive the township paid insurance benefits. III. Discussion: Mr. Charles Means Page 3 As elected supervisors of Harmar Township, the members of the township board are public officials as that term is defined under the Public Official and Employee Ethics Law of June 26, 1989, Act 9 of 1999. Accordingly, they are subject to the provisions of the Ethics Law and the restrictions therein are applicable to them. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: "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 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 and 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. Mr. Charles Means Page 4 In reviewing the question posed, our inquiry is limited to whether the supervisor /employees may receive these benefits under the Ethics Law. Although we do not have jurisdiction to interpret the Second Class Township Code, it is necessary in this case to review 53 P.S. 65515 to the extent that it impacts upon the Ethics Law regarding the issue of whether the supervisor employees would be using the authority of office to obtain a private pecuniary benefit for themselves. The Second Class Township Code provides for participation by supervisor employees in insurance plans: 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. No policy of group life insurance shall contain any provision for the accrual or deferral of a cash surrender value, loan value or any other nonforfeitable benefit, in addition to or beyond the face amount of insurance, that shall inure to the benefit of the supervisor, any beneficiary or any other individual having an insurable interest in the life of a supervisor. Such insurance, however, may contain a provision that when the insurance, or any portion of it, on a person covered under the policy ceases because of termination of employment or the termination of the insured's term of office, such person shall be entitled to have issued to him by the insurer, without evidence of insurability, an individual policy of insurance on any form customarily issued by the insurer at the age and for the amount applied for if: (i) such amount is not in excess of the amount of life insurance which ceases because of such termination; and (ii) the application for the individual policy is made and first premium is paid to the insurer within thirty -one days after such termination. Participation by supervisor - employees shall not require auditor approval. Supervisor - employees eligible for inclusion in such plans must meet the same requirements as other employees of the township who are eligible to participate in an insurance plan. Such plans shall not improperly discriminate in favor of a supervisor - employee. 53 P.S. 65515(c)(1). In the instant matter, we do note that the restriction of Section 3(a) of the Ethic Law quoted above prohibits the use of authority of Mr. Charles Means Page 5 office to obtain a private pecuniary benefit for the public official. In this case, the supervisor employees have been designated in one of the enumerated working positions (roadmasters) through formal action. In addition, Act 41 of 1988 specifically provides that supervisor employees are eligible for inclusion in group life plans paid in whole or part by the township. We also note that the life insurance coverage is available to all township employees who are so designated regardless of the amount of their working hours. Therefore, Section 3(a) of the Ethics Law would not restrict the receipt of this township paid benefit by the supervisor employees. A postscript is necessary so that our decision in this case is not misconstrued. First, as noted above, our jurisdiction is limited to interpreting the provisions of the Ethics Law. Therefore, we cannot and do not offer any interpretation as to whether the receipt of these benefits would be allowable under the Second Class Township Code. In particular, we do not address the question of whether such limited working hours would "improperly discriminate in favor of a supervisor - employee" under the Second Class Township Code. Secondly, the supervisor employees must be mindful of the Preamble to the Ethics Law: (a) 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 nominees or candidates for public office do not 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 financial disclosure as specified in this act. Furthermore, it is recognized that clear guidelines are needed in order to guide public officials and employees in their actions. Thus, the General Assembly by this act intends to define as clearly as possible those areas which represent conflict with the public trust. 65 P.S. 401(a). Since public office is a matter of public trust, any effort to realize personal financial gain through office is considered a violation of that trust. We would remind the supervisor employees that the benefits in question are paid for by tax revenues from the municipality which they represent. They must be aware of the Mr. Charles Means Page 6 utilization of tax revenues for the payment of such a program relative to their very limited working hours. Therefore, although the receipt of the township paid insurance benefits would not be prohibited by the Ethics Law, the supervisor employees should consider whether the better practice would be to forgo such benefits. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. IV. Conclusion: Second class township supervisors are public officials subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not prohibit supervisor employees from receiving township paid life insurance benefits, public office is a public trust and supervisor employees should consider whether the better practice would be to forego such benefits which would have to be paid from tax revenues. The issue of whether the receipt of the life insurance based upon limited working hours of the supervisor employees constitutes an improper discrimination under the Second Class Township Code is not addressed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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. such. This letter is a public record and will be made available as 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 th= Commission, elena G. Hughes, Chair