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HomeMy WebLinkAbout91-001 ConfidentialI. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington Daneen E. Reese Roy W. Wilt DATE DECIDED: February 14, 1991 DATE MAILED: VPhrunry 9R,, 1991 Re: Conflict, Supervisors, Roadmaster, Second Class Township, Township Paid Benefits, Medical Insurance, Compensation, Outside Employment, Limited Working Hours. This Opinion is issued in response to your confidential request of November 2, 1990. Whether a second class township supervisor under the Public Official and Employee Ethics Law may receive township paid medical insurance if he does not work during regularly scheduled working hours or only works on a part time basis. II. Factual Basis for Determination: 91 -001 As solicitor for A which is a second class township located in B, you inquire as to whether Supervisor C may be compensated for performing certain work as roadmaster and also whether he may receive township paid medical insurance benefits. The township has a highway department consisting of thirteen full -time employees who are charged with the maintenance and construction of township roads, streets, highways and bridges. The duties of the Office of Secretary /Treasurer are performed by one individual who is not a member of the three - member board of supervisors. A does provide medical insurance benefits to all full -time employees defined as those individuals who work a thousand hours or more per year. Although C was elected supervisor effective January 1990, he is also a full -time salaried sales representative of a nationwide electronics manufacturing and sales company. Since C is considering an appointment as township roadmaster for 1991, he seeks guidance as to whether, under Section 516 of the Second Class Township Page 2 Code, he would be receiving compensation which is provided by law. In particular, C inquires as to whether he may maintain his full -time position in private industry and also be employed as a full -time roadmaster for the township. After noting that the township has no policy prohibiting such activity, you ask whether C may be eligible for medical benefits and compensation approved by township auditors under Section 515 for performing the following duties: " (a) Continuous daily visual inspection of Township roads and bridges made on foot or by vehicle during the following times: (i) While going to or from sales appointments for his private employment. (ii) During evening hours and /or weekends while not going to and from destinations involving his private employment. (b) Research, by reading or personal view, regarding equipment to be used on Township roads. (c) Research, by reading and /or consulting with others knowledgeable in the field, regarding highway maintenance. (d) Hear complaints by Township residents relayed by telephone, in writing or in person (other than complaints presented to the Board on regular meeting dates) concerning Township road and bridge problems, such as maintenance and repair. (e) Personally view the road and bridge problems listed in (d) and instruct the highway department to correct said problems if necessary. (f) Operate machinery and physically work on the roads along with the employees of the highway department from time to time." Your second inquiry is whether C would be required to keep records regarding the work done, number of hours worked and compensation paid under Section 516(e) of the Second Class Township Code. Third, you seek advice as to whether C. could continue to be eligible for medical. benefits if his duties are designated by the Board of Supervisors and he works full -time and receives medical benefits but subsequently discontinues his full -time status because he would be unable to perform the thousand hours per year needed to continue as a full -time employee. Lastly, assuming that the township auditors would set a monthly salary for supervisor C as a roadmaster and if he became a part -time roadmaster, you inquire as to whether his salary would have to be reduced and, if so, whether the auditors should not only set a monthly salary but an hourly salary for the roadmaster position. Page 3 III. Discussion: As an elected supervisor of A, Supervisor C is a public official as that term is defined under the Public Official and employee Ethics Law of June 26, 1989, Act 9 of 1989. Accordingly, he is subject to the provisions of the Ethics Law and the restrictions therein are applicable to him. 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. The following terms are defined under the Ethics Law: Section 2. Definitions. "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. Page 4 In reviewing the question posed, our inquiry is limited to whether the supervisor /employee may work under the foregoing conditions and receive these benefits under the Ethics Law. 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 /employee would be using the authority of office to obtain a private pecuniary benefit for himself. The Second Class Township Code provides for participation by supervisor /employees in insurance plans: Supervisor- employes 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 - employes shall not require auditor approval. Supervisor- employes eligible for inclusion in such plans must meet the same requirements as other employes of the township who are eligible to participate in an insurance plan. Such plans shall not improperly discriminate in favor of a supervisor- employe. 53 P.S. 65515(c)(1). In the instant matter, we do note that the restriction of Section 3(a) of the Ethics Law quoted above prohibits the use of authority of office to obtain a private pecuniary benefit for the public official. In this case, the supervisor /employee will be designated in one of the enumerated working positions (roadmaster) 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 Page 5 coverage is available to all employees who are full -time employees who work a thousand hours or more per year for the township. We will now consider seriatim the four questions that you have posed under the Ethics Law. Regarding the ability of Supervisor C to maintain both his full -time position in private industry and be employed as a full -time roadmaster for the township, we have held on numerous occasions that, as a general rule, a public official /employee is not precluded from outside employment. Pancoe, Opinion 89 -011. Conversely, a person who is employed in a full -time private position generally would not be precluded from public service. In addition, we have held that public officials /employees must only perform their governmental functions on public time and further that they must perform their public function during the requisite working hours. Cohen, Order 610 -R; Williams, Order 734 -R; Forbes, Order 681. In applying the above to the first inquiry, we believe that C could in theory work full -time in private industry and also full -time as a township employee. However, as noted above, C would be required to work all of the hours that he would be logged in. We are concerned that working at arbitrary times such as coming or going from private employment or during evening hours or weekends would create a problem regarding verifying that the hours were in fact worked. We will not and do not attempt to usurp a function of the township regarding its responsibility for monitoring the working hours of its employees. Nanovic, Opinion 85 -005. Parenthetically, C must also exercise caution to recognize the distinction between those duties which relate to that of office - supervisor for which he cannot receive compensation (except as allowed in Section 515(a) of the Township Code, 53 P.S. 65515(a)) and those duties which are encompassed within the duties of a roadmaster for which C may be compensated as an employee- supervisor. Thus, action on the part of a supervisor to receive compensation as an employee - supervisor for duties which relate to the position of office - supervisor have been determined to contravene Section 3(a) of the Ethics Act. See Parish, Order 719. Therefore, we believe that C may perform and be compensated for performing duties as a roadmaster, provided he does in fact work the logged -in hours; we do not have authority nor will we attempt to impinge upon the duties of the township employer regarding monitoring the actual working time of its employees. As to the second inquiry concerning record maintenance by C as to work done, the number of hours worked and compensation paid under Section 516 (e) of the Second Class Township Code, we do not address that question since it involves a pure interpretation of the Second Class Township Code which is beyond the scope of the Ethics Law. Page 6 Regarding the third inquiry as to whether C could continue to receive medical benefits if he discontinued his full -time status because he was unable to perform the thousand hours per year needed to maintain full -time employment, we believe that under such circumstances C would have to forego such township paid medical benefits because at that point he would be using the authority of office to obtain a private pecuniary benefit contrary to Section 3(a) of the Ethics Law. It is a township requirement that township paid medical insurance benefits are paid to all full -time employees who work a thousand or more hours per year. If C would become part -time due to an inability to meet the thousand hour per year requirement, he would not be full - time and consequently would not be entitled to those benefits. See Section 515(c)(1) of the Second Class Township Code, supra. In this regard, we are not directly interpreting a provision of the Second Class Township Code but Section 3(a) of the Ethics Law which would prohibit the receipt of the township paid medical insurance benefits by C as a part -time employee since such would not be authorized in law as per Section 515(c)(1) of the Second Class Township Code. As quoted above, Section 515(c)(1) provides in part: "Supervisor - employes eligible for inclusion in such plans must meet the same requirements as other employes of the township who are eligible to participate in an insurance plan. Such plans shall not improperly discriminate in favor of a supervisor- employe." Hence, the receipt of township paid insurance under those circumstances would be unauthorized under the Second Class Township Code and would be a private pecuniary benefit under Section 3(a) of the Ethics Law. Finally, as to whether supervisor C would have to have his salary reduced on a pro rata basis from a monthly to hourly figure if he became part -time, we must reiterate what we said regarding the first issue noted above. C would be required under the Ethics Law to work the time for which he was designated; however, it is the function of the auditors to set the wages for the supervisor /employee and we will not usurp that auditor function. Nanovic, supra. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. IV. Conclusion: A second class township supervisor is a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, a second class township supervisor may work full -time in industry and also full -time as a roadmaster provided he actually does work the number of hours for which he is compensated. The setting of the monthly or hourly rate of compensation for an employee- supervisor is the function of the township board of auditors; however, an employee - supervisor must actually work the amount of time for which he is compensated. If the township supervisor becomes a part -time employee, he may not receive township paid medical benefits when such benefits Page 7 are only provided for full -time employees of the township who work a thousand or more hours per year. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. 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 te Commission, Robert W. Brown, Vice Chair