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HomeMy WebLinkAbout88-523 WilliamsonJ. Michael Williamson, Esquire 136 East Water Street Lock' Haven, PA 17745 Dear Mr. Williamson: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 March 1, 1988 ADVICE OF COUNSEL Re: Conflict ' of Interest, Borough Councilmember, Borough Mayor, Salary Increases 88 - 523 This responds to your letter of January 28, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon members of borough council or a borough mayor from receiving salary increases during their respective terms of office. Facts: You state that you represent both the Borough of Mill Hall, Clinton County, Pennsylvania, which is governed by a mayor and a seven board member council. You recite that because the population of the borough is less then 5,000, the maximum salary for councilmember and mayor is $1,500 and $2,000 respectively. You further state that in the November, 1987, election, the four incumbent councilmembers were re- elected while the remaining three members of council and the mayor were in the middle of their term.. You further state that on December 22, 1987, the council adopted with mayor approval an ordinance increasing the salary of the councilmembers and the mayor from $50 to $100 per month. You then recite Section 1001 of the [Second Class Township] Borough Code and express your view that that statutory provision authorizes the increase or decrease of borough salaries for both incumbent and non - incumbent councilmen provided the maximum salaries are not exceeded. You then reference correspondence from the Pennsylvania State Association.:of Boroughs which suggests that a borough ordinance does not equate to a "law" as that term is used in Article III, Section 27 of the Pennsylvania Constitution. You then question whether the actions of the mayor in approving the December 22, 1987 ordinance and receiving the increase salary during the middle of his term may have transgressed the provisions of the Ethics Act as well as the Pennsylvania Constitution. You then note that similar problems exist as to the three councilmembers who are mid term. Lastly, as to the four councilmembers who were re-elected in November, you raise a concern as to a possible interpretation that the salary increase J. Michael Williamson March 1, 1988 Page 2 ordinance might not take effect in light of the fact that it was adopted after the November election. You conclude by requesting advice as to whether the above actions may have transgressed the provisions of the Ethics Act. Discussion: A borough mayor and borough councilmembers are "public officials" as that term is defined under the State Ethics Act. See Rider Order, No. 490 -R and Rockovich Order, No. 356 -R. See also 65 P.S. §402; 51 Pa. Code §1.1. As such, their conduct is subject to the provisions of the State Ethics Act. Section 3(a) of the Ethics Act provides: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Comm. , 531 A.2d 536 (1987). Thus, under this provision, a public Official may not use his public position to secure any financial gain for himself or his immediate family unless it is provided for by law. Domalakes Opinion, 85 -010; Huff Opinion, 84 -015. In the instant situation, the question of the propriety of the mayor and councilmembers, whether they are in mid term or recently re- elected, in receiving increases in salary relates to Section 3(a) of the Ethics Act quoted above concerning the use of public office by a public official as to a financial gain or benefit which is not provided for in law. The salary increases in this case for both the mayor and the borough councilmembers are within the maximum that is allowable for the given population density of the borough. It must be restated that 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, Domalakes Opinion, 85 -010, Huff Opinion, 84 -015; a receipt of a salary by an official which is provided for in law does J. Michael Williamson March 1, 1988 Page 3 not transgress Section 3(a) of the Ethics Act. Therefore, under Section 3(a) of the Ethics Act, there is no prohibition upon the mayor or the seven members of the borough council from receiving an increase in salary from the amount of $50 per month to $100 per month since the salary of $100 per month which would yield $1,200 on an annual basis is below the $1,500 and $2,000 amounts respectively allowed for the councilmembers and mayor. Lastly, the propriety of the above conflict has only been addressed under the Ethics Act; specifically not addressed in this advice is the question of whether the mayor and members of city council may accept the salary increase under the Borough Code. Advice regarding the propriety of this activity under the Borough Code must be addressed by the solicitor for the borough since that would not involve any interpretation of the State , Ethics Act. Similarly, not addressed in this advice is the question of whether the receipt of the salary increase is permitted under Article III, Section 27 of the Pennsylvania Constitution since the Ethics Commission does not have jurisdiction to interpret constitutional provisions. Conclusion: The mayor and councilmembers of Mill Hall Borough are public officials subject to the provisions of the State Ethics Act. Under Section 3(a) of the Ethics Act, there is no prohibition upon members of borough council or a borough mayor from receiving compensation of $100 per month since that salary is provided for by law. Lastly, the propriety of the conduct in question has only been considered under the Ethics Act. Pursuant to Section 7(9)(ii), 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sincerely, Vincent J. Dopko General Counsel 14