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Home My WebLink About94-535 ConfidentialADVICE OF COUNSEL March 31, 1994 -STATE ETHICS COMMISSION 309 FINANCE .BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 " TELEPHONE (717) 783 -1610 94 -535 Re: Conflict, Public Official /Employee, Municipal Authority Board Member, Reimbursement for Lost Wages. This responds to your letter of February''10, 1994 in which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Municipal Authority Board Member from receiving reimbursement from the Authority for lost wages when the Toss is caused by attending to Authority business. Facts: You are a Member of the -Board Directors of Township A Municipal Authority, which was created pursuant to the Municipality Authorities Act of 1945. On occasion, you are required to spend time away from your usual employment to attend to business of the Authority. Without being limited to the following, you are required to attend collective bargaining sessions, appear at judicial, administrative and arbitration proceedings to testify on behalf of the Authority or in response to subpoenas served on you by adverse parties and attend seminars arid conferences pertaining to the conduct of the Authority's affairs and the discharge of your duties as a Board Member. You are a salaried employee at your usual place of employment but there are times when you lose compensation to attend to the affairs of the Authority and you wish to be reimbursed by the Authority for your lost compensation. Based upon the above, you request an advisory from the State Ethics Commission as to whether the Ethics Law restricts or prohibits you from receiving reimbursement from the Authority when you lose compensation for attending to the business of the Authority. Confidential Advice, 94 -535 March 31, 1994 Page 2 Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. SS407(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. 5S407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Member of the Board for Township A Municipal Authority, you are a public official - as that term is defined under the Ethics Law, and hence you 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 Confidential Advice, 94 -535 March 31, 1994 Page 3 duties and responsibilities unique to a partic`lar publi ffice 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. It is noted that under the Ethics Act, the jurisdiction of the Commission is limited to rulings regarding the applicability of the Ethics Act to a particular situation. The Commission is not permitted to interpret any - other statute, rule, regulation or code. However, the Commission has determined if a particular statutory enactment prohibits an official from receiving of a particular benefit, then that official's receipt of such..a prohibited benefit, through the authority of public office, would also be a use of the authority of office contrary to Section 3(a) of the Ethics Law. In this respect, this Commission has been called upon, on various occasions - , to determine whether a specific pecuniary benefit or financial gain is prohibited by law. In order to determine whether a particular pecuniary benefit or gain is strictly prohibited by law, the provisions of the Municipality Authorities Act of 1945 must be reviewed: p ' Members shall hold office until their successors have been appointed, and may succeed themselves, and, except members of the boards of Authorities organized or created by &school district or school districts, shall receive such salaries as may be determined by the governing body or bodies of the municipality or municipalities, but none of such salaries shall be increased or diminished by such governing body or bodies during the term for which the menber receiving the same shall have been appointed. 53 P.S. 5309 (B). The Municipality Authorities Act does not appear to contain any exception to the above provision that is applicable in the instant situation. As: a result of the foregoing, any reimbursement of lost wages which you would receive in that office would no "be authorized in law in light of the foregoing incompatibility provision; consequently, any gain or 'pecuniary benefit that you would receive would be a gain other than compensation provided for by law. Kinc, Opinion 85 -025. See also Taylor, Advice 87 -602. Although Taylor and the cases cited therein were decided under Act 170 of 1978, the reasoning set forth is applicable under Act 9 of Confidential Advice, 94 -53`S March 31, 1994 Page 4 1989. Since the Municipal Authorities Act specifically provides that the governing authority shall establish salaries which may not be increased or diminished during the term for which a member is serving, any reimbursement or payment to.you as a Board Member resulting from lost wages from your private employment would constitute a private pecuniary benefit' contrary to Section 3(a) of the Ethics Law. 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. - Conclusion: As a Board Member for Township A Municipal Authority, you are a public official subject to - the.provisions of the Ethics Law. The. Ethics. Law would prohibit you from receiving reimbursement from the Authority for lost wages. as such would be the use of authority of office to receive a private . pecuniary benefit. 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. 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 fifteen (15) 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). cerely, Vincent `. Dopko Chief Co„ sel