HomeMy WebLinkAbout02-002 PauckeOPINION OF THE COMMISSION
Before: Daneen E. Reese, Chair
Louis W. Fryman, Vice Chair
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
Donald M. McCurdy
Michael J. Healey
DATE DECIDED: May 2, 2002
DATE MAILED: May 16, 2002
02 -002
Eleanor L. Paucke, Secretary
Brown Township Supervisors
Box 37
Slate Run, PA 17769
Re: Conflict; Public Official /Employee; Township Supervisor; Compensation; Change;
Amendment to Ordinance Setting Compensation of Supervisors; Elimination of
Forfeiture Requirement; Term of Office.
Dear Ms. Paucke:
This Opinion is issued in response to your advisory request dated January 28, 2002.
I. ISSUE:
When township supervisors amend the township ordinance which sets supervisor
compensation so as to eliminate a requirement for forfeiture of such compensation for
nonattendance at meetings or hearings, whether, pursuant to the Public Official and Employee
Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., the township supervisors may accept this
alteration to their compensation during the term of office in which the amendment occurs.
II. FACTUAL BASIS FOR DETERMINATION:
As Secretary of Brown Township, ( "Township "), you seek an advisory from this
Commission on behalf of Township Supervisors Gary L. Davis, Robert C. Gilbaugh, and
Dennis W. Paucke (hereinafter collectively referred to as the "Township Supervisors'). You
have submitted the following facts and question.
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May 16, 2002
Page 2
The Township ordinance which sets the compensation of the Township Supervisors
currently provides that supervisors who fail to attend any monthly meeting or hearing forfeit
their compensation for the month. The Township Supervisors are interested in amending the
ordinance to eliminate this forfeiture requirement.
You ask whether such amendment would be effective immediately or whether it would
constitute an increase in compensation such that it would not be effective until a supervisor's
next term of office.
By letter dated April 15, 2002, you were notified of the date, time and location of the
public meeting at which your request would 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.
The Township Supervisors on whose behalf you have inquired are public officials
subject to the provisions of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
§ 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:
§ 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 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
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May 16, 2002
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public office or position of public employment.
65 Pa.C.S. § 1102.
In applying the above provisions of the Ethics Act, this Commission does not have the
statutory jurisdiction to interpret laws other than the Ethics Act. However, it is necessary at
times to review other sources of law to determine whether a particular benefit is authorized or
unauthorized. An unauthorized pecuniary benefit constitutes a "private pecuniary benefit" for
purposes of applying Section 1103(a) of the Ethics Act.
In order to properly consider the above provisions of the Ethics Act as they pertain to
your inquiry, we shall review Article III, Section 27 of the Pennsylvania Constitution and
Section 65606 of the Second Class Township Code.
Article III, Section 27 of the Pennsylvania Constitution provides:
Changes in Term of Office or Salary Prohibited
Section 27. No law shall extend the term of any public officer, or
increase or diminish his salary or emoluments, after his election or appointment.
We conclude that this prohibition does not impact upon your inquiry under the Ethics Act. The
Supreme Court of Pennsylvania has held that the above Constitutional proscription applies to
laws of the General Assembly and not to ordinances of municipal bodies. See, Baldwin v.
Philadelphia, 99 Pa. 164 (1881); McKinle v. Luzerne Township School District, 383 Pa. 289,
118 A.2d 137 (1955). Therefore, we nee. not consider this constitutional proscription further.
As for Section 65606 of the Second Class Township Code, that Section provides, in
pertinent part:
(a) Supervisors may receive as compensation an amount established by
ordinance not in excess of the following:
Township Population Annual Maximum Compensation
not more than 4,999 $1,875
5,000 to 9,999 $2,500
10,000 to 14,999 $3,250
15,000 to 24,999 $4,125
25,000 to 34,999 $4,375
35,000 or more $5,000
. Supervisors may continue to be compensated under prior law until such
time as an ordinance is enacted under this act. Any change in salary,
compensation or emoluments of the elected office becomes effective at the
beginning of the next term of the supervisor...."
53 P.S. § 65606(a) (Emphasis added).
Section 65606 of the Second Class Township Code, on its face, prohibits "any
change" in supervisor salary /compensation /emoluments from becoming effective during the
term in which such change occurs. It is clear, without any need for interpreting Section
65606, that an increase in the dollar amount of authorized supervisor compensation would be
a "change" which, pursuant to the Ethics Act, could not be accepted until the following term of
the Township Supervisors. Cf., McCabe, Opinions 95 -001 and 95- 001 -R.
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However, the issue presented by your inquiry is whether the proposed elimination of
the Township's current forfeiture requirement, specifically, the requirement that supervisors
who fail to attend any monthly meeting or hearing forfeit their compensation for the month,
would constitute a "change" in salary or compensation within the meaning of Section 65606 of
the Second Class Township Code.
The legislative history pertaining to Section 65606 does not reveal an answer to the
particular issue you have presented. Likewise, there does not appear to be any case law
addressing this issue.
Furthermore, cogent arguments could be made to support contrary interpretations of
the provision in this regard.
One interpretation would be that Section 65606 would prohibit the Township
Supervisors on whose behalf you have inquired from benefiting from the proposed
amendment during the term in which the amendment would occur. Arguments supporting this
interpretation would include: (1) that in interpreting the statutory language, "any change," the
word "any" generally means "all" or "every" and is 'most comprehensive' (Belefski Estate, 413
Pa. 365, 375, 196 A.2d 850, 855 (1964)), and the word "change" usually means "alteration or
makin djfferent" (see, United Parcel Service, Inc. v. United States Postal Service, 604 F.2d
1370 (3 Cir. Pa. 1979), cert. denied, 446 U.S. 957, 64 L.Ed. 2d 815, 100 S. Ct. 2929
(1980) , such that the plain meaning of the phrase "any change" would include the proposed
elimination of the forfeiture requirement as an alteration to supervisor compensation; and (2)
that the elimination of the forfeiture requirement would result in a higher dollar amount of
compensation received by supervisors who would miss meetings and hearings.
A contrary interpretation would be that Section 65606 would not prohibit the Township
Supervisors on whose behalf you have inquired from benefiting from the proposed
amendment during the term in which the amendment would occur. Arguments supporting this
interpretation would include: (1) that the legislative intent in promulgating Section 65606 was
to address changes in the dollar amount of supervisor compensation authorized by ordinance;
and (2) that the dollar amount of authorized supervisor compensation would not change as a
result of the proposed elimination of the forfeiture requirement.
Obviously, the issue cannot be resolved without interpreting Section 65606 of the
Second Class Township Code. This Commission does not have the statutory jurisdiction to
interpret laws other than the Ethics Act. Therefore, until there is a judicial ruling interpreting
Section 65606 of the Second Class Township Code in this regard, our Opinion must
necessarily be limited to advising you as follows. If and to the extent the Second Class
Township Code would prohibit the Township Supervisors on whose behalf you have inquired
from benefiting from the proposed amendment during the term in which the amendment would
occur, such a Supervisor's receipt of compensation that should properly have been forfeited
would constitute a private pecuniary benefit in contravention of Section 1103(a) of the Ethics
Act.
The propriety of the proposed conduct has only been addressed under the Ethics Act.
IV. CONCLUSION: Township Supervisors are public officials subject to the provisions
of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The
issue of whether the proposed elimination of a Township's requirement that Supervisors who
fail to attend any monthly meeting or hearing forfeit their compensation for the month would
constitute a "change" in salary or compensation within the meaning of Section 65606 of the
Second Class Township Code is an issue which cannot be resolved without interpreting
Section 65606 of the Second Class Township Code. Since this Commission does not have
the statutory jurisdiction to interpret laws other than the Ethics Act, until there is a judicial
ruling interpreting Section 65606 of the Second Class Township Code in this regard, this
Commission's Opinion must necessarily be limited to advising that if and to the extent the
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May 16, 2002
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Second Class Township Code would prohibit the Township Supervisors from benefiting from
the proposed amendment during the term in which the amendment would occur, such a
Supervisor's receipt of compensation that should properly have been forfeited would constitute
a private pecuniary benefit in contravention of Section 1103(a) of the Ethics Act.
The propriety of the proposed conduct has only been addressed under the Ethics Act.
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