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Home My WebLink About01-611 MikesellDennis M. Didio Council President Borough of Carroll Valley P. 0. Box 718 Fairfield, PA 17320 Dear Mr. Didio: ADVICE OF COUNSEL December 11, 2001 01 -611 Re: Conflict; Public Official /Employee; Borough; Council Members; Council President; Mayor; Compensation; Increase; Borough Code. This responds to your letters of October 16, 2001, and October 30, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 PAS. § 1101 et seq. presents any prohibition or restrictions upon borough council members and the mayor as to receiving salary increases during their terms in office. Facts: As Council President of the Borough of Carroll Valley ("Borough"), you seek advisory on behalf of yourself and fellow Council Members, Dorothy A. Corbin, Carl F. W. Kohn, Anthony Myers, Pamela Mikesell, George Fisanich, and Nancy A. Sias, (collectively referred to herein as the "Council Members "), and the Borough Mayor, Grady H. Edwards. On May 14, 2001, Ordinance #1 -01 was passed by Borough Council and approved by the Mayor amending the Borough's Code of Ordinances by providing for an increase in the compensation of the Mayor and Council Members effective January 1, 2001 as provided for in the 2001 budget appropriations. You have submitted a copy of the Borough ordinance, which is incorporated herein by reference. The salaries of the Council President, Council Members, and Mayor have been set at $800, $700 and $2,000 respectively. None of the salaries have been increased in the last ten years. Ordinance #1 -01 provides for a $100 salary increase across the board. You submit that the Borough Code states: "Councilmen may receive compensation to be fixed by ordinance at any time and from time to time as follows: In boroughs with a population of less than 5,000, a maximum of $1875 a year." "The salary of the mayor shall be established by ordinance and shall not exceed, in boroughs with a Didio 01 -611 December 11, 2001 Page 2 population of less than 5,000, a maximum of $2500 a year." "The salary or compensation of a mayor shall not increase or decrease oftener than once in two years." In that the population of the Borough is approximately 3,200, you state that the proposed increases would remain well within the statutory limits. Given the above facts, you ask whether the increases may be included in the compensation of the Council President, Council Members and Mayor during your terms in office. 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, 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 Pa.C.S. 107(10), (11). An advisory only affords a defense to the extent the requestor has truth fully disclosed all of the material facts. As Council President, Mayor, and Council Members for the Borough of Carroll Valleyy, you are all public officials as that term is defined in the Ethics Act, and hence you are all subject to the provisions of that 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 public office or position of public employment. 65 Pa.C.S. § 1102. Didio 01 -611 December 11, 2001 Page 3 In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment 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. In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Our review under Section 1103(a) of the Ethics Act is limited to whether the Council President, Council Members and Mayor may receive compensation set by the governing body during their terms or whether such compensation may be received by only subsequently appointed members /mayor. Although the State Ethics Commission does not have jurisdiction to interpret the Borough Code and the Pennsylvania Constitution, it is necessary in this case to review such laws to the extent that they impact upon the Ethics Act regarding the issue of whether there would be a use of authority of office to obtain a private pecuniary benefit. Article III, Section 27 of the Pennsylvania Constitution 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 Members of the Borough Council. Based upon your express factual submission that the salary increases are within the range provided for by law relative to the population of the Borough, the Ethics Act would not prohibit you from including the increases in the compensation of the Council President, Council Members and Mayor during your terms in office. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As Council President, Mayor, and Council Members for the Borough of Carroll Valley, you are all public officials subject to the provisions of the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11 ( "Ethics Act "). Based upon your express factual submission that the salary increases are within the range provided for by law relative to the population of the Borough, the Ethics Act would not prohibit you from including the increases in the compensation of the Council President, Council Members and Mayor during your terms in office. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Didio 01 -611 December 11, 2001 Page 4 Pursuant to Section 1107(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 or 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. 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. Sincerely, Vincent J. Dopko Chief Counsel