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HomeMy WebLinkAbout97-003 DawsonTimothy P. Dawson, Esquire 28 Main Street PO Box 430 Adamsburg, PA 15611 Dear Mr. Dawson: 1. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Rev. Joseph G. Quinn Boyd E. Wolff Julius Uehlein DATE DECIDED: 2/21/97 DATE MAILED: 3/7/97 Re: Public Official; Borough Solicitor; Benefits; Health Insurance. 97 -003 This Opinion is issued in response to your advisory request letter dated October 29, 1996. Whether a Borough Solicitor may participate in the Borough's health insurance coverage at the Borough's expense or, alternatively, at the Solicitor's own expense at either a full or reduced rate. II. FACTUAL BASIS FOR DETERMINATION: As the Solicitor for Manor Borough in Westmoreland County, Pennsylvania, you seek an advisory from the State Ethics Commission regarding your prospective participation in the Borough's health insurance coverage. Manor Borough has health, dental, and eyecare coverage through the Teamsters. You ask whether the Borough may provide health insurance coverage to you as Borough Solicitor based upon its current coverage contract. Alternatively, you ask whether you as Borough Solicitor would be permitted to buy into the same coverage, either at a full or reduced rate, by having the Borough deduct the cost of the monthly premium from your pay. Dawson, 97 -003 March 7, 1997 Page 2 By letter dated February 12, 1997, you were notified of the date, time, and location of the public meeting at which your request for an advisory was to be considered. III. DISCUSSION: It is initially noted that pursuant to Sections 7(10) and 7(1 1) 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. In issuing the advisory 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. 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. It is the view of this Commission that in your capacity as Solicitor for Manor Borough in Westmoreland County, Pennsylvania, you are a public official /public employee subject to the provisions of the Ethics Law and particularly subject to Section 3(a) which would be most pertinent in addressing your inquiry. However, it is noted that the status of Solicitors under the Ethics Law is presently the subject of litigation in Commonwealth Court (P.J.S. v. State Ethics Commission, No. 230 M.D. 1995; C.P.C.. Esquire v. State Ethics Commission, 735 M.D. 1996, 2134 C.D. 1996). With regard to the questions that you have posed, the pertinent provisions of the Ethics Law provide as follows: 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 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. Dawson, 97 -003 March 7, 1997 Page 3 "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(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 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. Although this Commission does not have the statutory jurisdiction to interpret laws other than the Ethics Law, the following provisions of the Borough Code would impact upon an application of the Ethics Law to your inquiry: §46006. Duties of council It shall be the duty of the borough council: (6) To fix the compensation of all of the borough officers, appointees and employes. 53 P.S. §46006(6). Dawson, 97 -003 March 7, 1997 Page 4 §46101. Compensation, hours and days of work; outside employment Appointed officers and employes of the borough shall receive such compensation for their services as the council shall prescribe... . 53 P.S. §46101. §46202. Specific powers The powers of the borough shall be vested in the corporate authorities. Among the specific powers of the borough shall be the following .... (37) Other insurance. ... To make contracts of insurance with any insurance company, association or exchange, authorized to transact business in the Commonwealth, insuring borough employes, or mayor and council, or any class, or classes thereof, or their dependents, under a policy or policies of insurance covering life, health, hospitalization, medical and surgical service and /or accident insurance, and to contract with any such company, granting annuities or pensions, for the pensioning of borough employes, or any class, or classes thereof, and to agree to pay part or all of the premiums or charges for carrying such contracts, and to appropriate moneys from the borough treasury for such purposes... . 53 P.S. §46202(37). In order to determine whether a private pecuniary benefit would result in any given instance, we review what is allowable in law. See, e.g.,, Saurman, Opinion No. 94 -004. A financial gain to a public official /public employee that is other than compensation provided for by law is a private pecuniary benefit. Patterson, Order No. 1023. Governmentally paid insurance coverage is compensation, and it is a private pecuniary benefit where it is not authorized by law. (See, Krane, Opinion No. 84 -001; CowiQ, Opinion No. 84 -010; Davis, Opinion No. 84 -012; and Domalakes, Opinion No. 85 -010 for decisions under Act 170 of 1978). In this case, our review of the first two provisions of the Borough Code set forth above reveals that the Borough Council has the power to "fix the compensation" of its officers, appointees, and employees which would seem to include the Solicitor. On the other hand, the third Borough Code provision above, which sets forth the Borough's specific powers to purchase this type of insurance, does not include Borough Solicitors specifically or borough officers or appointees generally as among those for whom such insurance may be provided by the Borough. Given that the pertinent provisions of the Borough Code on their face do not appear to authorize Borough Solicitors to participate in the Borough's health insurance coverage at Borough expense, we hold that absent a judicial interpretation of the Borough Code which would permit same, pursuant to Section 3(a) of the Ethics Law you could not participate in Manor Borough's health insurance coverage under an arrangement whereby all or any portion of the premium would be paid by the Borough. Dawson, 97 -003 March 7, 1997 Page 5 Turning to your alternative inquiry as to whether you would be permitted to participate in the same coverage at your own expense, by having the Borough deduct the cost of the monthly premium from your pay, we do not address payroll deduction practices, but we do have jurisdiction to address, and we have previously addressed, the question of whether a public official /public employee may participate in his governmental body's insurance coverage at his own expense. The less costly premiums which group insurance programs offer could certainly constitute a private pecuniary benefit. Nevertheless, there have been instances where we have determined that a public official /public employee who was not entitled to governmentally -paid insurance could nevertheless participate in the governmental body's group plan at his own expense. In Keiter, Opinion No. 90 -004, decided under Act 9 of 1989, we held that a Tax Collector for a Second Class Township could participate in the Township's insurance program at his own expense, noting that he did not use the authority of his office to so participate. In Domalakes, Opinion No. 85 -010, decided under Act 170 of 1978, we held that a Borough Tax Collector could participate at his own expense in the Borough's health insurance coverage. Unlike the Tax Collectors in the Opinions cited above, who would play no official role in the governmental body's decision as to whether to allow them to participate in its insurance coverage, a Borough Solicitor ordinarily would play a role in advising Borough Council in such matters. Since it would be your own participation in the insurance coverage that would be at issue, you would have a clear conflict of interest in matters involving your participation in the Borough's health insurance coverage. You would therefore be required to abstain fully from such matters and to satisfy the disclosure requirements of Section 3(j) set forth above. Conditioned upon your abstention as Borough Solicitor and your satisfaction of the Section 3(j) disclosure requirements as to matters involving your participation in the Borough's health insurance coverage, if the Borough Council were to authorize your participation in Manor Borough's health insurance coverage at your own expense, such participation would not transgress Section 3(a) of the Ethics Law. Since the Borough Council would be making the decision as to whether you could participate, without any involvement by you as Solicitor, you would not be using the authority of your office so that that particular element of a Section 3(a) violation would be lacking. 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: A Borough Solicitor is a public official /public employee subject to the provisions of the Ethics Law. Given that the pertinent provisions of the Borough Code on their face do not appear to authorize Borough Solicitors to participate in the Borough's health insurance coverage at Borough expense, absent a judicial interpretation of the Borough Code which would permit same, pursuant to Section 3(a) of the Ethics Law a Borough Dawson, 97 -003 March 7, 1997 Page 6 Solicitor could not participate in the Borough's health insurance coverage under an arrangement whereby all or any portion of the premium would be paid by the Borough. A Borough Solicitor would have a conflict of interest in matters involving the Borough Solicitor's participation in the Borough's health insurance coverage and would be required to abstain and to satisfy the disclosure requirements of Section 3(j) as to such matters. Conditioned upon the Solicitor's abstention and satisfaction of the Section 3(j) disclosure requirements in matters involving the Solicitor's participation in the Borough's health insurance coverage, Section 3(a) of the Ethics Law would not prohibit a Borough Solicitor from participating, with Borough Council's approval, in the Borough's health insurance coverage at the Solicitor's own expense. 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. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty 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, 66 Daneen E. Reese Chair