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HomeMy WebLinkAbout94-005 WeberSue Weber Roadmaster, District I Township of Millcreek 3508 West 26th Street P.O. Box 8268 Erie, PA 16505 -0268 Dear Ms. Weber: I. ISSUE: 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 Joseph W. Marshall, III DATE DECIDED: 09/13/94 DATE MAILED: 09/21/94 Whether the Public Official and Employee Ethics. Law imposes any prohibition or restrictions upon a second class township supervisor- roadmaster regarding the number hours worked or the types of activities performed when the compensation is set by the auditors as a salary. 94 -005 Re: Conflict, Public Official, Second Class Township, Supervisor, Auditors, Roadmaster, Salary, Duties, Administrative; Road Related. This Opinion is issued in response to your advisory request on July 22, 1994. II. FACTUAL BASIS FOR DETERMINATION: Millcreek Township, as one of the largest second class townships in the Commonwealth, receives many telephone calls and walk -in visitors with complaints. The three Supervisors are also Weber, Sue, 94 -005 September 21, 1994 Page 2 paid township employees; two are roadmasters and the third is secretary. The roadmasters have responsibility for over two hundred miles of roads in the township. The Supervisors do not receive meeting pay. Each year the Auditors set a salary for the working Supervisors. The Auditors do not specify any hourly wage or hours to be worked but merely set a salary. Although your paycheck reflects that you work forty hours, you actually work more than sixty hours per week and receive a salary with no overtime. You inquire as to whether the following activities, which when performed by you, would qualify as hours worked for which you could receive roadmaster pay as set by the Auditors: "1. Taking complaint calls about road /storm sewer problems; examining the problems in the field and directing the streets department head foreman on corrective action to be taken. 2. Dictating letters to PADOT, DCA, material suppliers, bidders, etc. with regard to streets /storm sewers, and our township garage which repairs our streets equipment. 3. Attending Road Scholar schools and DCA training for roadmasters. 4. Putting together the paving lists, storm /sewer job lists, etc. 5. Writing a safety plan which includes our streets operation; chairing the safety committee meetings at which part of the agenda is reviewing street department accidents. 6. Reviewing equipment and material specs, researching new products and purchasing road related items. • 7. Holding neighborhood meetings with regards to streets /storm sewer projects (our storm sewer work is done by our streets department as it is within our right - of-way and drains the streets). 8. Working with the budget for the streets department and working on joint purchases with streets departments from other townships. 9. Working on labor problems with streets department employees and management. 10. Inspecting completed work -- paving, chipping, plowing, etc. Weber, Sue, 94 -005 September 21, 1994 Page 3 11. Reviewing subdivision plans with regard to roads and meeting developers about the same. 12. Attending Planning Commission meetings to make sure road problems in proposed subdivisions are addressed, attending Water and Sewer Authority meetings for the same purpose as their projects affect our right -of -way and our paving /storm sewer scheduling." You realize that regular roadwork such as patching potholes and driving truck for which you have a valid CDL license qualify (as roadmaster work). When the Auditors set your salary as a roadmaster, you inquire whether the Auditors should specify the numbers of hours and, if so, should the same apply to the Supervisor who is Township Secretary? You ask whether the salary should be set for doing the job or should the hours be specified? After noting that any given day may be intermixed with Supervisor (and roadmaster) duties, you state that you always work more than forty hours as a roadmaster, especially on weekends and evenings, answering complaints. III. DISCUSSION: As a Supervisor for Millcreek Township, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions 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. The following terms are defined in the Ethics Law 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 Weber, Sue, 94 -005 September 21, 1994 Page 4 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. 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. In applying the provisions of the Ethics Law to the instant matter, we must reference the Second Class Township Code. Although we do not have jurisdiction to interpret the Second Class Township Code, it is necessary in this case to review that law in order to determine whether the additional compensation or overtime is authorized in law so as to be allowable under Section 3(a) of the Ethics Law. Means, Opinion 90 -007. Section 515 of the Second Class Township Code provides in part: "Compensation of Supervisors -- Supervisors may receive from the general township fund, as compensation, an amount fixed by ordinance not in excess of the following: 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 Annual Maximum Compensation Fifteen hundred dollars Two thousand dollars Twenty -six hundred dollars Thirty -three hundred dollars Thirty -five hundred dollars Four thousand dollars 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. The compensation of supervisors shall be fixed by the township auditors either per hour, per day, per week, semi - monthly or monthly, which compensation Weber, Sue, 94 -005 September 21, 1994 Page 5 53 P.S. §65515. 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 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 material 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." Although the above cited provision of the Second Class Township Code would appear to the limit the auditors in setting the compensation for working supervisors to an hourly wage or a weekly, bi- weekly, or monthly salary, the auditors in the instant matter have set a salary for the supervisors. We do not know whether the salary is per annum or for a shorter time interval. Parenthetically, if the salary is set for a year, a question may arise as to whether such action by the auditors comports with the above cited section of the Second Class Township Code. However, it is not the function of this Commission to usurp the function of the auditors in such matters. Courtner, Opinion 93 -001; Nanovic, Opinion 85 -005. What is clear is that the auditors have fixed a salary for the working supervisors within some specified time frame. The question becomes whether a working supervisor who is on a salary may receive additional compensation or overtime when that supervisor works beyond a standard forty hour work week. In this context, our answer must turn upon the inherent limitations which are associated with the receipt of a salary. The term "salary" has been defined in Beaver v. Liston, 776 Pa. Commw. Ct. 619, 464 A.2d 679 (1983): "Salary," on the other hand, has a more restricted, specific meaning than "pay" as a category of compensation. "Salary" is a special type of compensation, where a fixed, stated amount is paid periodically as by the year, quarter, month, week or other fixed period. See, Black's Law Dictionary 1200 (5th ed. 1979); Webster's Third New International Dictionary 2003 (1966). Thus the Legislature's eleventh hour substitution of the word "salary," a narrow category of compensation denoting a fixed amount paid at periodic intervals for the word "pay," a generic term embracing Weber, Sue, 94 -005 September 21, 1994 Page 6 multiple forms of compensation including "money paid in addition to basic ... salary ", id., evinces a legislative intent or disposition to exclude overtime earnings from salary when calculating monthly pension benefits. To declare otherwise would be an unwarranted judicial expansion of the Legislature's intended, restricted scope of the word "salary." See, Hilliaoss v. LaDOW, 174 Ind.App 520, 368 N.E.2d 1365 (1977), appeal dismissed, 435 U.S. 942, 98 S.Ct. 2840, 56 L.Ed.2d 783 (1978). Id. at 682. From the above judicial definition, it is clear that a salary is a fixed amount of compensation, unaffected by the number of hours worked. Accordingly, since you are salaried, your compensation would be limited to that amount regardless of whether you work more or less than a standard forty hour work week. If you were to receive payment in addition to your salary for extra hours worked or overtime, such would be a private pecuniary benefit in that such compensation would not be authorized in law. Thus, any additional compensation above your salary would be a private pecuniary benefit contrary to Section 3(a) of the Ethics Law. Hessinaer, Order 931; Wasiela, Order 932. Parenthetically, we do note that the Second Class Township Code provides for meeting pay to the supervisors in an amount based upon township population. Although you have stated that you do not take such meeting pay, the Code nevertheless authorizes such compensation to which you would be entitled within the limitations of the Code. Turning to the twelve groups of activities which you have listed, we do not address such questions at this time for the reason that you receive a fixed salary for your duties performed as a roadmaster. In light of the foregoing, it does not matter under that system of compensation whether a given activity performed by you is either administrative relating to the office elected supervisor or whether that activity is a roadmaster function relating to your position of a township employee. Obviously, the foregoing differentiation would be of crucial importance if the auditors had set your compensation as a roadmaster at an hourly rate. We therefore conclude that under Section 3(a) of the Ethics Law you may not as a working supervisor receive additional compensation or overtime for performing duties as a roadmaster when the auditors have set your roadmaster compensation as a salary. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, Weber, Sue, 94 -005 September 21, 1994 Page 7 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. IQ. CONCLUSION: A second class township supervisor is a public official subject to the provisions of the Ethics Law. The Ethics Law prohibits a second class township supervisor from receiving additional compensation or overtime as a roadmaster when the auditors have set the compensation for a roadmaster as a fixed salary. 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. 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. This letter is a public record and will be made available as By the Commission, James M. Howley Chair