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HomeMy WebLinkAbout93-001 CourterNevin Courter, Supervisor Larry Dotterer, Supervisor Porter Township Supervisors P.O. Box 57 Lamar, PA 16848 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger DATE DECIDED: May 7, 1993 DATE MAILED: May 11, 1993 Re: Conflict of Interest, Public Official, Second Class Township, Supervisor, State of Emergency, Snow Storm, Plowing Roads, Personal Equipment, Compensation, Father, Immediate Family. Dear Mr. Courter and Mr. Dotterer: This Opinion is issued in response to your letter of request dated March 18, 1993. I. ISSUE: 93 -001 Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon township supervisors and one supervisor's father from receiving compensation for using their own personal equipment and their time to plow township roads during the state of emergency following a snow storm and high winds. II. FACTUAL BASIS FOR DETERMINATION: Supervisor Nevin Courter and Supervisor Larry Dotterer as two Supervisors in Porter Township, inquire as to the procedure to compensate themselves and Paul Dotterer who is the father of Supervisor Dotterer regarding their time and use of personal equipment during a recent snow storm. During the weekend of March Nevin Courter, Supervisor Larry Dotterer, Supervisor May 7, 1993 Page 2 13, 1993, a snow storm and high winds occurred which caused the local roads to be covered with high drifts or to be completely closed. During the state of emergency, the Township plows were unable to either open or keep open some of the roads which necessitated obtaining large construction equipment from other sources during that weekend. Supervisors Courter and Dotterer used their personal equipment to keep the roads open due to the inability to locate other contractors with equipment to do the job. A log of the personal equipment of Courter and Dotterer has been submitted which lists the dates of work performance, the equipment used consisting of either personal or Township equipment together with the hours used, an hourly rate of compensation which is not broken down between man hours and equipment hours, and totals for the services performed. After noting that Supervisors Nevin Courter and Larry Dotterer were appointed roadmasters at the township meeting on January 4, 1993, with their compensation set at $7.00 per hour by the township auditors at a meeting of January 5, 1993, the following breakdown has been submitted as to the equipment and operators: Date 03/15/93 03/14/93 03/15/93 03/14/93 03/14/93 03/15/93 TOTAL Date 03/14/93 EQUIPMENT OWNED BY PAUL DOTTERER & Operated by Larry Dotterer Larry Dotterer Paul Dotterer Paul Dotterer Robert McClintick Larry Dotterer EQUIPMENT OWNED BY NEVIN COURTER, Operated by Eric Bierly TOTAL TOTAL FOR DOTTERER & COURTER EQUIPMENT SONS, RD. 3, MILL HALL, PA. Rate per hour /ectuip. Total $50.00 - Snow Blower $ 575.00 2 $50.00 - Snow Blower 100.00 2 1/2 $50.00 - Large Plow 125.00 4 $50.00 - Large Plow 200.00 2 $50.00 - Loader 100.00 5 $50.00 - Loader 250.00 $1,350.00 Hours 11 1/2 Hours 10 CONTRACTOR, LAMAR, PA. Rate per hour /equip. Total $50.00 - Loader $ 500.00 $ 500.00 $1,850.00 Inquiry is made as to what steps the Township could take to compensate the Supervisors for their equipment usage. Nevin Courter, Supervisor Larry Dotterer, Supervisor May 7, 1993 Page 3 III, DISCUSSION: As Supervisors for Porter Township, each Supervisor is a "public official" as that term is defined in the Ethics Law. 65 P.S. S402; 51 Pa. Code 51.1. As such, they are subject to the provisions of the Ethics Law and the restrictions therein are . applicable to them. Section 3(a) of the Ethics Law provides: Restricted Activities 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. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. Nevin Courter, Supervisor Larry Dotterer, Supervisor May 7, 1993 Page 4 "Immediate family." A parent, spouse, child, brother or sister. Under Section 3(a) of the Ethics Law quoted above, a public official may not use the authority of office or confidential information to obtain a private pecuniary benefit for himself, a member of his immediate family or a business with which he is or a member of his immediate family is associated. 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. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to Nevin Courter, Supervisor Larry Dotterer, Supervisor May 7, 1993 Page 5 vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In reviewing the question posed, our inquiry is limited to whether the supervisor /employees may receive such compensation 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 that law 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 in part: " . The compensation of supervisors, when acting as superintendents, roadmasters or laborers, shall be fixed by the township auditors either per hour, per day, per week, semi - monthly or monthly, which compensation shall not exceed compensation paid in the locality for similar services, and such other reasonable compensation for the use of a passenger car, or a two -axled four - wheeled motor truck having a chassis weight of less than two thousand pounds and a maximum gross weight of five thousand pounds, or a class 2 truck, having a maximum gross weight of seven thousand pounds when required and actually used for the transportation of road and bridge laborers and their hand tools and for the distribution of cinders and patching materials from a stock pile, as the auditors shall determine and approve; but no supervisor shall receive compensation as a superintendent or roadmaster for any time he spends attending a meeting of supervisors." 53 P.S. §65515(a). As to the provisions of the Ethics Law, Supervisors Courter and Dotterer could receive compensation as to their time and private equipment only to the extent allowable by law. Since they are working supervisors, their hourly rate of compensation could be Nevin Courter, Supervisor Larry Dotterer, Supervisor May 7, 1993 Page 6 no more than that which has been approved by the Township Auditors. Since the Township Auditors approved an hourly rate of $7.00 per hour for these Supervisor as roadmasters, it is clear that they would be entitled to that hourly rate for the time expended for working on the snow plowing or removal during the state of emergency. As to the use of their personal equipment, they would be entitled to said compensation under the Ethics Law provided the equipment is within the categories specified by the Second Class Township Code and provided "the auditors shall determine and approve". The foregoing is a function of the auditors. It is not our function to usurp the statutory duties of the township auditors. Dice, Opinion 85 -021. Therefore, to the extent that the compensation is allowable under the Second Class Township Code and is approved by the auditors, the Ethics Law would not prohibit the receipt of such compensation. Means, Opinion 90 -007. Parenthetically, we note that although the Township Auditors did approve an hourly rate of $7.00 per hour at their meeting of January 5, 1993, there is no indication as to whether the auditors made any approval for vehicle use within the parameters as specified by the Second Class Township Code. If these auditors made such an approval, the rate of compensation set is a limitation as to the amount of compensation allowable under the Ethics Law. If the auditors have not made such approval, we believe that an "after the fact" approval in the same year would not be prohibited by the Ethics Law given the extraordinary circumstances present in the case. The foregoing is not inconsistent with our ruling in Saunders, Opinion No. 85 -006, where we determined that it was improper under the Ethics Law for township auditors in one year to make a retroactive approval for a prior year. In the instant matter, the approval could be after the fact but within the same year. Therefore, the hourly rate of compensation as set by the auditors, before or after the state of emergency, as to compensation for personal vehicle use within the vehicle types prescribed by the Second Class Township Code would be allowable under the Ethics Law. As to Supervisor Dotterer's father, the Township could also compensate him for his time for working on the roads but in that regard, Supervisor Dotterer would have a conflict in that Paul Dotterer is his father and hence a member of his immediate family. Consequently, Supervisor Dotterer would have to abstain on the matter of compensating his father and follow the disclosure requirements of Section 3(j) of the Ethics Law as outlined above. Nevin Courter, Supervisor Larry Dotterer, Supervisor May 7, 1993 Page 7 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. IV. CONCLUSION: Township supervisors are public officials subject to the provisions of the Ethics Law. Township supervisors who are working supervisors may be compensated for their personal time working on clearing township roads during a state of emergency after a snow storm at the hourly rate set by the township auditors. The township could compensate the father of one of the supervisors for his time and private equipment usage but the supervisor -son would have a conflict and could not participate or vote on the payment of such hourly compensation and must follow the disclosure requirements of Section 3(j) of the Ethics Law. The township supervisors could be compensated for the use of their personal equipment to the extent that the equipment is within the types authorized by the Second Class Township Code and approved by the auditors. 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 the Commission, Aft,/ AV James M. Ho Chair