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Home My WebLink About94-526 WoodruffSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783-1610 ADVICE OF COUNSEL March 16, 1994 Dwayne D. Woodruff, Esquire Meyer, Darragh, Buckler, Bebenek & Eck 2000 Frick Building Pittsburgh, PA 15219 -6194 Re: Conflict, Public Official /Employee, Water Authority Board Members, Health Care Coverage Plan, Participation at Own Expense. Dear Mr. Woodruff: 94 -526 This responds to your letter of February 9, 1994 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon _Authority Board Members from participatinq in an Authority Health Insurance Coverage Plan, if the Board; Members participate in such a plan at their own expense. Pacts: You are Solicitor for Harrison Township Water Authority which has a five- mem board, : Four of the five members are officers holding the positions of chairman, flfit vice- chairman, second vice - chairman and secretary /trealArefr 1 Bird Members would like to have the option of joining t14 Air'thc rii? i health care coverage plan with such members beinn personally responsible for paying their entire premium amount. 'au' state that the cost of the coverage would be less than the c6st of similar non - group coverage. You understand that similar'coverage is available for township supervisors and commissioners. You indicate that a question has been raised as to whether such coverage would be considered compensation in that it would be at no cost to the authority. Further, you refer to Section 7C of the liuuatci:pal Authorities Act and to Rebottiii v. State Ethics Comma sui:on, 2165 C.O. 19 9 3 , to support a conch ion that even if such coverage would be considered compensation such compensation would be permitted. woodruff, Dwayne D., Esquire; 94 -526 March 16, 1994 Page 2 The Board Membe berli40 text• it vauld. be beneficial. to employee relations and in- addredsiig odsglaints and questions regarding health coverage rf the &Wet rfers were subject to the Same coverage as- the emaloyeed Fiiialiy, you state that AO McMbet currently participates in the health &overage §1an and they ate seeking this advisory from the Stat€" ithide Commission before doing sa. Discussion: f€ is initially fioted that pursuant to Sections 7(10) and 7(11) of the Ethies La*, 6t P.S. §§407(160, (11), advisories are issued to the Fequestor based upon the facts which the requestor has submit ted: in issuing the advisory based upon the facts which the req uestor has si hft tt6d, the Commission does not engage in an rode ief defit inveetigatidn of the facts, nor does it speculate as tb facts Which have not dean submitted. It is the burden of the reclies €o€ to tfuthftily disclose all of the material facts releiianb the iitf tiif 3 65 P.S. 55407 (10) , (11) . An advisory only affords a defenee to the extent the requestor has truthfully disclosed all of the material facts. As Board Meinbdrs for the Hafriean Township Water Authority, the a individuals are publics officals as that term is defined under the Ethics Law, and h @hee they are subject to the provisions of that law: Section 3(a) of the Ethics _Last $r, ''ides Section 3 - _.Rest:ricted ctiV .ee,. (a) Mc tbli tifitial or public- employee y &hail. eii& . in conduct that constitutes a flict interest. The folloWing'tefittd al defined in the Ethics Law as follows: Section --2- 'De ans . "Confli r conflict of interest." by •a public official or public 'employee of the authority of his office or employment ror taw confidential information receiYed through his holding public office or employment for the private pecuniary benefit of himself, almember of his immediate family or a business with which he or =a member cbf his immediate - family �s..'a oei=afiecl. "Cdhflict" or on a ct of lntere:sk'" 'cRbeS shot i nCIude an act;ibn having a de minimis economic i'lhpac`t br '01hidh %ffects to the same =degr'ee a class consiitin of the Woodruff, Dwayne D., Esquire,,, March 16, 1994 ' '` Page 3 4 -526 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. In addition, Sections 3(b) and 3(c) of the Ethics Law 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 judgement 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 addressing the issue of whether the Authority Board Members may participate in the Authority Health Care Coverage Plan at their own expense, the question of whether such participation is permissible under the Municipal Authorities Act cannot be addressed. Since the State Ethics Commission does not have jurisdiction to interpret the provisions of- the Municipal Authorities Act, this advice is limited expressly to the propriety of such participation under the Ethics Law. The Commission has reviewed similar questions under the requirements of Section 3(a) of the Ethics Act. In Domlakes, 85- 010, the Commission held that a borough tax collector could participate at his own expense in the borough's group insurance programs. Although Domlakes was issued under former Act 170 of 1978, 65 P.S. S401, et -seg. (amended and reenacted on June 26, 1989 by Act 9. of 1989), which former Act would not apply to this case, the Commission's Opinion in Reiter, 90 -004 reached a similar conclusion under Act 9 of 1989. The Commission concluded that a tax collector. in a Second Class Township would not be in violation of the Ethics Law by participating at his own expense in the Township Hospitalization Plan. Id. In an advice issued under former Act 170, it was determined that borough councilmen could participate at their own expense in group insurance policies maintained by the borough without being deemed to have transgressed the Ethics Act, where the officials woodruff, Dwayne D., Esquire, 94 -526 March 16, 1994 Page 4 were to contact the insurance carrier themselves and pay all premiums for their coverage themselves. Mu^sto; - S4-583. Although the former Act does not apply to this case, the reasoning set forth in Nusto would apply to the circumstances presented in this case. Although participation in group coverage stay be deemed a private pecuniary benefit, (See Re iter, 90- O(4 }, based on your factual statement that the Authority Board Meatbers will bear the costs of this coverage, and the Authority would bear no cost for such coverage and given the ready availability of group coverage plans, the participation in the borough plans by the Authority Board Members would not appear, under the circumstances presented in this case, to present a conflict of interest. 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. Specifically not addressed herein is the applicability of the Municipal Authorities Act of 1945. Conclusion: As Members of 'the Harrison Township Water Authority, the members are public officials subject to the provisions of the Ethics Law. Based upon the factual assumption that the Authority would not contribute any amount to the health care coverage for the 'Authority Board members, the Ethics Law would not prohibit the Members from participating in the Authority's health care coverage plan at their own expense. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 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. such. This letter is a public record and will be made available as 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 fifteen (15) days of the date of this Woodruff, Dwayne D., Esquire, 94x536 March 16, 1994 Page 5 Advice pursuant to 51 Pa,Code §13!2(h). The appeal may be received at the Commission by hand delivery, United 3trte s mail, delivery service, or by FAX transmission ( 7 1 7mlit 8Q6), Sincerely, J Vincent Dopko Chief Counsel