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HomeMy WebLinkAbout93-007 MarshDear Mr. Marsh: 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 Joseph W. Marshall, III DATE DECIDED: DATE MAILED: 9/29/93 10/04/93 Marsh, Spaeder, Baur, Spaeder & Schaaf 93 -007 Attorneys At Law Ritchie T. Marsh Suite 300 300 State Street Erie, Pennsylvania 16507 -1481 Re: Conflict, Public Official /Employee, Second Class Township, Supervisor, Sewer /Water Treatment Plant, Township Owned Plant, Use of Authority of Office, Private Pecuniary Benefit, Supervisor as Compensated Plant Operator. This Opinion is issued in response to your letters of request dated August 12 and September 2, 1993. I. ISSUE: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a second class township supervisor from receiving compensation for operating a township owned water /sewer plant. II. FACTUAL BASIS FOR DETERMINATION: As the legal representative of Greene Township, a Second Class Township in Erie County, you note that the supervisors are in the process of acquiring a water and sewer treatment plant that is operated pursuant to a Public Utility Commission permit and independently owned by a person who is willing to give ownership, Marsh, 93 -007 October 4, 1993 Page 2 operation and control of the plant to the township. The township would have to acquire various permits for the operation of the plant and utilize a licensed operator who would be in charge of taking various tests and reporting the results to the Department of Health, the Department of Environmental Resources, and other agencies. After expressing concern about the supervisors contravening the Ethics Law or Second Class Township Code as to this matter, you reference a provision in the Second Class Township Code which allows supervisors to be employed as roadmasters or laborers if they are physically able to work on and maintain the roads. You inquire as to whether this Commission has literally interpreted that Section so as to restrict supervisors to the performance of only road work and hence not the operation of a water or sewage facility. Since the township would be obligated to have a licensed operator for the plant, it is proposed that one of the supervisors, Clarence Hess, would operate the water and sewer plant and conduct the necessary tests as required by the government agencies. By utilizing Clarence Hess, you state that the supervisors would be saving money for the township. You conclude by inquiring as to whether Clarence Hess may be legally appointed by the board of supervisors to be the water and sewer plant operator and whether there would be any violation of any state laws or regulations as to such activity. III. DISCUSSION: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. S §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. This Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. Laser, Opinion 93 -002. It is the burden of the requestor to truthfully disclose all of the materials facts relevant to the inquiry. 65 P.S. §S407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Second, this Commission, in the exercise of its jurisdiction, is limited to making determinations under the Ethics Law. In making such decisions, it is necessary at times to review other laws to determine whether a given benefit is authorized so that we may conclude whether a public official /employee is receiving a private pecuniary benefit contrary to the Ethics Law. However, it is beyond the scope of the Ethics Law and the function of this Commission to make determinations as to other state laws, regulations or Constitutions. Accordingly, the scope of our Marsh, 93 -007 October 4, 1993 Page 3 inquiry and our determination is limited to the Ethics Law. Township, Erie County, that term is defined under 5402; 51 Pa. Code. 511.1. Township are subject to As supervisors for Greene supervisors are public officials as Ethics Law and regulations. 65 P.S. such, the supervisors of Greene provisions of the Ethics 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. The term "conflict of interest" is defined in the Ethics as follows: 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 of his immediate family or a business with which he or a member of his immediate family is associated. the the As the Law In addition, Sections 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 anything 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 been or will be any transgression thereof but merely to provide a complete response to the question presented. Marsh, 93 -007 October 4, 1993 Page 4 Our inquiry under Section 3(a) of the Ethics Law is limited to whether Supervisor Hess may be compensated for operating the township owned water /sewer plant. Although we do not have jurisdiction to interpret the Second Class Township Code as noted above, it is necessary in this case to review various provisions of that Code to the extent that it impacts upon the Ethics Law regarding the issue of whether there would be a use of authority of office to obtain a private pecuniary benefit. The Second Class Township Code provides in part as follows: § 410. Supervisors. (a) Except as is otherwise provided for the election of additional supervisors, at each municipal election, the electors of each township shall elect one supervisor to serve for a term of six years from the first Monday of January next following his election. (b) Except as provided in section 514, no supervisor shall at the same time hold any other elective or appointive townshi• office or •osition other than townshi• roadmaster or secretary- treasurer. Nothing in this subsection shall prohibit a supervisor from being a member of a township planning commission created pursuant to the act of July 31, 1968 (P.L. 805, No. 247) known as the "Pennsylvania Municipalities Planning Code" (Emphasis added) (c) Supervisors shall reside in the township from which elected and shall have resided in that township continuously for at least one year before their election. 53 P.S. §65410. § 514. Road districts; superintendent and roadmasters. The board of township supervisors, immediately after their organization, shall divide the township into one or more road districts. They shall employ a superintendent for the entire township or a roadmaster for each district. Every superintendent and roadmaster, so employed, must be a person physically able to work on and maintain the roads. Township supervisors may require such superintendents or roadmasters to give bond, with a surety company or other company authorized by law to act as surety, for the faithful performance of their duties. The superintendent or roadmasters shall be subject to removal by the board of supervisors. The supervisors shall fix wages to be paid, either per hour, per day, per week, semi - monthly or monthly, to the superintendent or Marsh, 93 -007 October 4, 1993 Page 5 roadmasters and laborers for work on the roads and bridges, which wages shall not exceed wages paid in the locality for similar services. This section shall not prohibit the township supervisors from being employed as superintendents or roadmasters, or as laborers, if physically able to work on and maintain the roads. With regard to boards of supervisors which are designated as three- member boards, any supervisor who is to be considered by such a board for a position as a compensated employee of the township, as authorized by this section, shall not be excluded from voting on the issue of such appointment; such action by a supervisor shall be deemed to be within the scope of authority as a supervisor and shall not be deemed to constitute an illegal or an improper conflict of interest. In such cases they shall not employ a superintendent or roadmasters and their compensation shall be fixed as hereinafter provided. (Emphasis added) Two or more townships may appoint the same persons as superintendent. 53 P.S. S65514. § 515. Compensation Township Population Not more than 4,999 5,000 to 9,999 10,000 to 14,999 15,000 to 24,999 25,000 to 34,999 35,000 or more Such salaries shall be payable monthly or quarterly for the duties imposed by the provisions of this act. The population shall be determined by the latest available official census figures, except that no township shall be required to reduce the salary of a supervisor as a result of a decrease in population. 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 - - - (Emphasis added) 53 P.S. §65515. of supervisors. (a) Supervisors may receive from the general township fund, as compensation, an amount fixed by ordinance, not in excess of the following: Annual Maximum Compensation Fifteen hundred dollars Two thousand dollars Twenty -six hundred dollars Thirty -three hundred dollars Thirty -five hundred dollars Four thousand dollars Marsh, 93 -007 October 4, 1993 Page 6 We glean from the Second Class Township Code that a supervisor as an elected official may receive the compensation that is set and limited by Section 515 based upon the population density of the township. Second, a supervisor as a working township employee may receive compensation for performing duties as a superintendent, secretary - treasurer, roadmaster or laborer with the compensation set by the township auditors. It is clear that supervisors may only receive the compensation as enumerated above. Decisional law has strictly followed the limitations of the Second Class Township Code regarding compensation. The decision of Commonwealth Court in Coltar v. Warminster Township, 8 Pa. Commw 163, 302 A. 859 (1973) , which involved a surcharge action against second class township supervisors who gave themselves compensation for supplementing the duties of the township manager, is controlling. The Court affirmed the surcharge order noting that the supervisors received a financial gain which was not authorized by the Second Class Township Code: Since the disbursements in question here were made not for attendance at meetings of for acting as superintendents, roadmasters or laborers, they were without legal authorization and illegal. The supervisors are elected public officials and the permissible range of their compensation was set by the legislature prior to the time that they were elected. The language of sections 410 and 515 set forth above seems clear to us. The supervisors had no statutory power to establish a $100.00 a month compensation rate for their assigned duties designed to augment the responsibilities of the township manager. They personally profited to the extent of$1,100.00 by their own unlawful action. * * * One further argument weighs heavily against the supervisors' contention that it would be unfair to surcharge them since the township has benefitted from their efforts. That argument is the well and wisely established principle of public policy. A public official may not use his official power to further his own interest. Genkinger v New Castle, 368 Pa. 547, 84 A.2d 303 (1951). It is against public policy, in the absence of specific legislative authorization, for a public official to appoint himself to another public office. Commonwealth ex rel. McCreary v Major, 343 Pa. 355, 22 A.2d 686 (1941). Further, if we accepted the supervisors' argument and set aside the surcharge, we would be approving a method of circumventing and nullifying the compensation limitations imposed by section 515 of the Code, 53 P.S. §65515. See Lower Nazareth Township Supervisors' Appeal, 341 Pa. 171, 19 A.2d 92 (1941). There is no inherent right in a township officer to receive payment for his services, since he is entitled only to such compensation as is expressly authorized by statute. Id. at 861, 862. Marsh, 93 -007 October 4, 1993 Page 7 In this case, if Supervisor Hess were appointed to the compensated position of township water /sewer plant operator, such action would contravene Section 3(a) of the Ethics Law. The action to appoint Hess would be a use of authority of office. Since the position is a compensated one, Hess would be receiving a pecuniary benefit which would inure to himself. Lastly, the pecuniary benefit would be a private one since the compensation received is not authorized in law. Our decision is consistent with prior Commission precedent on the issue of the receipt of compensation by second class township supervisors. In numerous instances, we have found violations of the Ethics Law where second class township supervisors as township employees have accepted compensation for work which was not road, road related or labor related. See, e.q., Tyger, Order 858, Stahl, Order 857, Henderson, Order 818, Sitek, Order 817, Russell, Order 765 and Parish, Order 719. In such cases, the supervisors received compensation for performing administrative services which duties were encompassed within the office of elected supervisor. It is noted that this type of issue has been considered in the publication of the Pennsylvania State Association of Township Supervisors, Pennsylvania Township News. In the June, 1988 issue, township supervisor incompatibility was applied to many township offices and positions, including township manager, township sewage enforcement officer, township police officer, township building code officer, township zoning hearing board member and school director. Further, in the July, 1991 issue, a question was raised regarding a township which was the owner /operator of a public water supply system wherein the board of supervisors served as the policy and decision makers for the water system. Since much of the supervisors' time was devoted to the water system, it was questioned whether the supervisors could be paid from the funds of the water system. The response was that supervisors may not be compensated as employees or administrators of the water system. We are also aware that this type of issue has been discussed in Advices of Counsel. See Petrosky, Advice 93 -593; Neugebauer, Advice 93 -576; Fritsch, Advice 93 -533 and Frankhouser, Advice 93- 501. Those Advices, which are not formal adjudications of the Commission, have no relevance to the instant matter since, in all of the above advices, the water /sewer authority was a separate governmental body; in this case, the water /sewer plant is part of the township. Thus, the fact that the sewer /water plants were separate municipal authorities and hence separate governmental bodies is the distinguishing element in those advices. Lastly, we do appreciate the motivation of the supervisors in attempting to utilize Hess at a lesser compensation than some other licensed operator. However, we do not have the latitude under the Ethics Law to deviate from the letter of the law, nor do we have the power to carve out an exception where none has been provided by the General Assembly. See Confidential Opinion 93 -005. Marsh, 93 -007 October 4, 1993 Page 8 We therefore conclude that the proposed conduct is prohibited by the Ethics Law. 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. IV. CONCLUSION: Township supervisors are public officials subject to the provisions of the Ethics Law. A second class township supervisor is prohibited under Sections 3(a) of the Ethics Law from receiving compensation for operating a township owned water and sewer plant. 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 the ommission, James M. Howley Chair