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HomeMy WebLinkAbout96-569 LeinaweaverShelley M. Derendinger Secretary/Treasurer Borough of Newport 231 Market Street Newport, PA 17074 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 13, 1996 9a -569 Re: Conflict, Public Official /Employee, Borough, Council Members, Mayor, Salary Increase. Dear Ms. Derendinger: This responds to your letters of April 25 and May 28, 1996 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restricts seated borough council members and /or a seated borough mayor with regard to receiving a salary increase within the maximum amount allowed by law. Facts: As Secretary /Treasurer of the Newport Borough Council, you request advice from the State Ethics Commission on behalf of Council Members Deven Cohick (Cohick), Myrtle Leinaweaver ( Leinaweaver), and Mayor Martha McDermond (McDermond). Cohick, Leinaweaver and McDermond are all seated, with terms that run through 1997. You and Council President Barbara Leach contacted the Pennsylvania State Association of Boroughs (PSAB) and asked if the full Council (some seated and some newly elected in November of 1995) and the Mayor could receive a salary increase. You state that PSAB advised you that the Borough Code does not state that the seated Council Members could not receive the increase, and that all of the Council and the Mayor could receive the pay raise. At the Borough Council's meeting on December 5, 1995, a motion was passed to increase the Council's salary to $ 100 per month and the Mayor's salary to $ 125 per month effective January 1, 1996. Full Council and the Mayor received the new salary rates for the months of January and February, 1996. At the March 5, 1996 Borough Council meeting, Leinaweaver stated that she had attended a meeting in Cumberland County and was informed by other borough representatives that it was a violation of the State Constitution for seated council and a seated mayor to receive a salary increase. A motion was then made at the March 5, 1996 meeting to rescind the pay raises for Cohick, Leinaweaver and McDermond Derendinaer, 96 -569 June 13, 1996 Page 2 and to pay them at the old rate of $50 per month for Council Members and $75 per month for the Mayor. The remainder of the Council Members would receive the $100 per month rate. At the April 16, 1996 Council meeting, Mayor McDermond questioned whether Council Members could be paid more than the Mayor. A motion was passed to seek an advisory from the State Ethics Commission as to this matter. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. § 5407(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, the 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. As Council Members and Mayor for the Borough of Newport, Cohick, Leinaweaver and McDermond are public officials as that term is defined under the Ethics Law, and hence they 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 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 public office or position of public employment. Derendinaer, 96 -569 June 13, 1996 Page 3 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. In the instant situation, the question of the propriety of a borough council member or mayor, whether in mid -term or recently re- elected, receiving increases in salary relates to Section 3(a) of the Ethics Law quoted above. Although you have not indicated the population of the Borough, the salary increases proposed in this case are within the maximum amounts allowable for even the least- populated boroughs. See, 53 P.S. §46001; 46025. Section 3(a) prohibits conduct where public officials use their office to obtain some type of gain or personal benefit which is not provided for in law, Domelakes, Opinion 85 -010; Huff, Opinion 84 -015; a receipt of a salary by an official which is provided for in law does not transgress Section 3(a) of the Ethics Law. Therefore, under Section 3(a) of the Ethics Law, Members of the Borough Council and the Mayor could receive such increases in salary because they are within the maximum amounts allowed by law. However, you are cautioned that 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. This Advice does not address the question of whether the receipt of the salary increase would be Derendinaer, 96 -569 June 13, 1996 Page 4 permissible under Article III, Section 27 of the Pennsylvania Constitution, since the Ethics Commission does not have jurisdiction to interpret constitutional provisions. For your information, Article III, Section 27 of the Pennsylvania Constitution provides as follows: §27. 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. There is some case law which appears to suggest that Pennsylvania courts have interpreted the above Constitutional prohibition to apply to laws of the General Assembly as opposed to ordinances of municipal bodies. However, it is recommended that the Council Members and Mayor on whose behalf you have inquired obtain legal advice in that regard. Likewise, this Commission does not have the statutory jurisdiction to answer your inquiry as to the following provision of the Borough Code: . In no case shall the compensation for any councilman exceed that of the mayor in any given borough: Provided, however, That wherever the mayor's compensation exceeds that authorized by this section for councilmen, the president of council may receive compensation not to exceed that of the office of mayor. 53 P.S. §46001. Legal advice as to that provision should be sought from an attorney. Conclusion: As Council Members and Mayor for the Borough of Newport, Cohick, Leinaweaver and McDermond are public officials subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit these individuals from voting for /receiving increased compensation in the amounts of $100 per month for Council Members and $125 per month for the Mayor since such salaries are within the maximum amounts provided for by law Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. It is recommended that the advice of legal counsel be obtained as to the propriety of the proposed conduct under the Borough Code and /or Article III, §27 of the Pennsylvania Constitution. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice of if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Derendinaer, 96 -569 June 13, 1996 Page 5 Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. ncerely, I ` t"csv- Vincent J. opko Chief Counsel