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HomeMy WebLinkAbout95-001 McCabeDear Mr. McCabe: I. ISSUE: Before: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Daneen E. Reese, Chair Roy W. Wilt Austin M. Lee Allan M. Kluger John R. Showers Rev. Joseph G. Quinn Boyd E. Wolff DATE DECIDED: 02/24/95 DATE MAILED: 03/10/95 William J. McCabe, Esquire DeBernardo, Antoniono, McCabe & Davis, P.C. 11 North Main Street Greensburg, PA 15601 Re: Conflict, Public Official, Municipal Authority, Member, Compensation, Private Pecuniary Benefit, Use of Authority of Office, Prospective, Term, Governing Body. This Opinion is issued in response to your advisory request on November 16, 1994. II. FACTUAL BASIS FOR DETERMINATION: 95 -001 Whether under the Public Official and Employee Ethics Law members of a municipal authority, during the pendency of their term, may vote to accept compensation set by the governing body rather than having such compensation applied to subsequently appointed members. You are the Solicitor for the North Huntingdon Township Municipal Authority (NHTMA), a sewage authority organized under the Municipality Authorities Act and located in North Huntingdon, McCabe, William J., Esquire, 95 -001 March 10, 1995 Page 2 Westmoreland County with a five member Board who serve staggered terms. A copy of the NHTMA bylaws which are incorporated by reference has been supplied. The NHTMA Board members in the past have voted to pay themselves a salary based upon service as Chairman, Vice Chairman, Secretary and Treasurer pursuant to Section 309(c) of the Municipality Authorities Act. Such salaries were abolished in January, 1992. The North Huntingdon Township Commissioners (NHTC) at no time in the past have authorized, pursuant to Section 309(b) of the Municipality Authorities Act, the NHTMA Board members to receive compensation for their services as Board members. On January 3, 1994, the NHTC voted to approve a $100.00 per month salary for "any member of the North Huntingdon Township Municipal Authority Board who is legally able to accept such salary." On behalf of the NHTMA Board members you inquire as to whether the following two actions would transgress the Ethics Law: "1. Voting to begin receiving the $100.00 per month salary in the middle of their respective terms of office; and or 2. By casting an affirmative vote to initiate the payment of a salary to themselves as a result of serving as NHTMA Board members." III. DISCUSSION: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.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 material facts relevant to the inquiry. 65 P.S. § §407(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, McCabe, William J., Esquire, 95 -001 March 10, 1995 Page 3 regulations or Constitutions. Accordingly, the scope of our inquiry and our determination is limited to the Ethics Law. As members of the Board of the NHTMA, Westmoreland County, the Board members are public officials as that term is defined under the Ethics Law and regulations. 65 P.S. §402; 51 Pa. Code. §11.1. As such, the NHTMA Board members are subject to the 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 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 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. McCabe, William J., Esquire, 95 -001 March 10, 1995 Page 4 Our inquiry under Section 3(a) of the Ethics Law is limited to whether the NHTMA Board members may receive compensation set by the governing body during their terms or whether such compensation may be received by only subsequently appointed members. Although we do not have jurisdiction to interpret the Municipality Authorities Act of 1945 and the Pennsylvania Constitution as noted, it is necessary in this case to review such laws to the extent that they impact upon the Ethics Law regarding the issue of whether there would be a use of authority of office to obtain a private pecuniary benefit. We are aware of Article III, Section 27 of the Pennsylvania Constitution which provides: Changes in term of office or salary prohibited No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment. As to the above quoted provision of the Pennsylvania Constitution, a question of interpretation arises as to the meaning of "law" vis -a -vis the prohibition as to a salary increase after election or appointment. It appears that the courts in Pennsylvania have limited the above Constitutional proscription to laws of the General Assembly but not to ordinances by municipal bodies. See Baldwin v. Philadelphia, 99 Pa. 164 (1881); McKinley v. Luzerne Township School District, 383 Pa. 289, 118 A.2d 137 (1955). Therefore, under the judicial precedent which has interpreted the above Constitutional provision, it seems that there is no constitutional bar for salary increases as to current municipal authority board members. The Pennsylvania Constitution notwithstanding, there is an explicit statutory prohibition as to salary increases of current municipal authority board members in the Municipality Authorities Act of 1945, as amended, which provides in part: B. Members shall hold office until their successors have been appointed, and may succeed themselves, and, except members of the boards of Authorities organized or created by a school district or school districts, shall receive such salaries as may be determined by the governing body or bodies of the municipality or municipalities, but none of such salaries shall be increased or diminished by such governing body or bodies during the term for which the member receiving the same shall have been appointed... 53 P.S. 309 B McCabe, William J., Esquire, 95 -001 March 10, 1995 Page 5 It is clear from the Municipality Authorities Act of 1945, as amended, that salaries for municipal authority board members as set by the governing authority "shall [not] be increased or diminished during the term for which the member receiving the same shall have been appointed." Id. Given the above statutory prohibition, we believe that such an increase in salary during the term of the board member is unauthorized in law and hence would be a prohibited private pecuniary benefit under Section 3(a) of the Ethics Law. Although we appreciate the disparity in salaries which will arise between current and subsequently appointed members as well as the inherent unfairness of such a situation, the letter of the law is explicit in prohibiting such salaries to current members. We as a Commission do not have the power to condone the receipt of a pecuniary benefit under the Ethics Law when such benefit is private as being unauthorized and in fact prohibited by law. Confidential Opinion 93 -005. From the above, it is clear that municipal authority board members may not accept a salary increase set by the governing body which may be received by only subsequently appointed members. Since such compensation is prohibited in law, the voting to receive that salary by current members would be a use of authority of office to obtain a private pecuniary benefit. There would be a use of authority of office by virtue of the members holding that position and derivatively taking the salary as a result of public office. Juliante, Order 809. The pecuniary benefit would be private because it is not authorized in law. Marsh, Opinion 93- 007. We therefore conclude that the receipt of salary by current members 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: Municipal Authority members are public officials subject to the provisions of the Ethics Law. Municipal Authority members are prohibited under Sections 3(a) of the Ethics Law from voting to receive a salary increase set by the governing body during their term which compensation would be applicable to subsequently appointed members only. McCabe, William J., Esquire, 95 -001 March 10, 1995 Page 6 Pursuant to Section 7(10) on this opinion issued to him civil penalties for so acting stated in the request. such. , the person who acts in good faith shall not be subject to criminal or provided the material facts are as 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, Daneen E. Reese Chair