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HomeMy WebLinkAbout99-005 ThompsonOPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Julius Uehlein Louis W. Fryman John J. Bolger Frank M. Brown Susan Mosites Bicket DATE DECIDED: 11/23/99 DATE MAILED: 12/7/99 George G. Thompson, Esquire Wilson & Thompson, L.L.C. 1162 Elk Street P.O. Box 310 99 -005 Franklin, PA 16323 Re: Conflict, County, Commissioner, Insurance, Compensation, Salary, Benefits, Exchange, Monetary Payment. Dear Mr. Thompson: This Opinion is issued in response to your advisory request received on September 13, 1999. I. ISSUE: Whether county commissioners may forgo county paid health insurance benefits in exchange for a whole or partial monetary payment in lieu of such benefits under the Public Official and Employee Ethics Act. II. FACTUAL BASIS FOR DETERMINATION: On behalf of the Commissioners of Venango County, you inquire about the propriety of the receipt of monetary payments to elected officials who choose not to participate in the county's health insurance plan when such payments are not part of the schedule of approved compensation. You state that elected officials of Venango County are entitled to participate in health insurance benefits which are provided to all employees and elected officials without charge. When employees and elected officials choose not to participate in the health plan, the county is not required to expend as much money for premiums. In such instances, the employees are given some share of the money which would have been spent paying for their health insurance. If elected officials are similarly treated, the payment could be considered as beyond the schedule of salaries as fixed by the Board of Commissioners pursuant to 16 P.S. §11011 -10.1. You pose the following questions: 1. Is this payment akin to a mileage reimbursement or other travel Thompson, 99 -005 December 7, 1999 Page 2 reimbursement which would be outside the scope of the fixed compensation of the elected officials? 2. Is this inappropriate compensation in excess of the established salary schedule and therefore a violation of the statute governing the setting of compensation? 3. Is this payment a violation of 16 P.S. §11011 -12 which provides some limitation on payments to County Officers? It is noted that after your advisory request was received, the Chief Counsel of this Commission contacted you by telephone on October 21, 1999, and by letter dated October 25, 1999, and requested that you supply clarification as to the legal basis supporting the receipt by the County Commissioners of County paid benefits. You never responded to these requests, despite the fact that you were specifically advised by Chief Counsel that the requested information may have an impact upon the response of this Commission to your advisory request. By letter dated November 2, 1999, you were notified of the date, time, and location of the public meeting at which your request for an advisory Opinion was to be considered. III. DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(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 Pa.C.S. § §1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Where, as in this case, a requestor fails to provide all of the necessary information, and particularly where, as in this case, the requestor has specifically been asked to supply information that is material to the request and has failed to do so, this Commission is constrained to limit any response accordingly. In considering the questions that you have posed, the pertinent provisions of the Ethics Act provide as follows: Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act as follows: Section 1102. 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. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the Thompson, 99 -005 December 7, 1999 Page 3 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. "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. 65 Pa.C.S. §1103. Section 1103(j) of the Ethics Act provides as follows: Section 1103. Restricted activities. (j) Voting conflict. - -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. 65 Pa.C.S. §1103(j). If a conflict exists, Section 1103(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 submitting your request, you make various references to the County Code. Although we do not have the statutory jurisdiction to interpret laws other than the Ethics Act, such other laws become relevant when it is necessary to determine whether a public official /employee may receive a pecuniary benefit under the Ethics Act. In such cases, other laws must be considered to determine whether the pecuniary benefit is permitted as authorized in law or prohibited as a private pecuniary benefit without authorization in law. The sections of the County Code which you have cited provide as follows: §11011 -10.1. County commissioners; power to fix salaries of county officers (a) From and after the effective date of this section, the county commissioners shall have the power to fix the salary of all county officers governed by the provisions of this Thompson, 99 -005 December 7, 1999 Page 4 act. (b) Salaries for all county officers governed by the provisions of this act shall be fixed by the county commissioners in the following manner: (1) The county commissioners shall cause notice of intention to fix salaries at a special public meeting on a date certain to be published in a newspaper of general circulation at least ten days in advance of such special public meeting. (2) The special public meeting shall be held during the hours of 6:00 p.m. and 9:00 p.m., prevailing time, so as to afford the public the greatest opportunity to attend. (3) The special public meeting shall be held in a centrally located area of the county. (d) No new salary schedule shall be adopted in a calendar year in which the county commissioners are to be elected. (e) Any salary increase shall be on a percentage basis and applied equally to all county officials except that the county commissioners may provide a greater percentage salary increase to the lowest paid county official, other than the jury commissioners or county auditor, until his salary is equal to the other county officials except the jury commissioners, county auditors, district attorneys and county commissioners. 16 P.S. §11011 -10.1 §11011 -12. Limitations on payments (a) The county officers shall be paid only the salary provided herein for services performed for the county or any other governmental unit: Provided, however, That this restriction shall not apply to those county officers receiving a salary as executive and administrative officers of institution districts existing in their counties. (b) All fees and commission received in the conduct of any county office shall be paid directly to the county. Fees shall not be deemed to include reimbursement for mileage. 16 P.S. §11011 -12 The determination of whether a private pecuniary benefit would be received in any given instance is dependent upon whether the financial benefit is allowable in law as noted above. See, e.q., Saurman, Opinion 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 1023. Governmentally paid insurance coverage is compensation, and it is a private pecuniary benefit where it is not authorized by law. (See, Krane, Opinion 84 -001; Cowie, Opinion 84 -010; Davis, Opinion 84 -012; and Domalakes, Opinion 85 -010 for decisions under Act 170 of 1978). In a review of the County Code, we have not found any provision which allows county commissioners to receive paid health insurance at county expense. However, since you have specifically represented that Aelected officials of the county are entitled to participate in the health insurance benefits. . .free of charge,@ we shall assume that such county paid benefits are authorized in law. If county paid health insurance benefits would not be allowed in law, it would automatically follow that it would be impermissible under the Ethics Act for the public official /employee to receive a whole or partial monetary payment in lieu thereof. Based upon your representations and conditioned upon the legal authorization for county paid health insurance benefits, the propriety of the county commissioners foregoing Thompson, 99 -005 December 7, 1999 Page 5 such benefits in return for some monetary payment likewise depends upon whether there is a specific authorization in law to receive the pecuniary benefit. If such benefits are only authorized in law with no option to forego the benefits for a monetary payment, then the county commissioners could not obtain such a pecuniary benefit. Contrariwise, if the county commissioners are specifically authorized in law to exercise an option to forgo the benefits for a monetary payment, then such would be allowable under the Ethics Act. The argument that the monetary payment could be viewed like a travel reimbursement is unavailing because the latter involves an individual being made whole for out of pocket expenditures. That is totally different from the issue of whether a public official /employee is entitled to receive a pecuniary benefit, that is, a financial gain. As noted above, any such pecuniary benefit must be authorized in law in order for the public official /employee to receive such benefit. The propriety of the proposed conduct has only been addressed under the Ethics Act. IV. CONCLUSION: County commissioners are public officials subject to the provisions of the Ethics Act. To the extent county commissioners are entitled under law to receive county paid health insurance benefits, they may only receive monetary payments in lieu thereof under the Ethics Act if there is specific authorization in law to exercise an option to forgo such benefits for a monetary payment. Pursuant to Section 1107(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, a party 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 party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). By the Commission, Daneen E. Reese Chair