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HomeMy WebLinkAbout94-624 ShrenkleR. Joan Shrenkle Secretary West Carroll Township P.O. Box 374 Elmora, PA 15737 -0374 Re: Conflict, Public Official /Employee, Second Supervisor, Road Inspection, Compensation. Dear Ms. Shrenkle: This requested Issue: presents township STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 4, 1994 94 -624 Class Township, responds to your letter of October 6, 1994 in which you advice from the State Ethics Commission. Whether the Public Official and Employee Ethics Law any prohibition or restrictions upon a second class supervisor regarding compensation for a road inspection. Facts: Mr. James H. Dibbert (Dibbert) is a West Carroll Township Supervisor who is also employed by the Township on a full -time basis as roadmaster. When Dibbert performs a road inspection, a question arises as to whether he should be compensated at the regularly hour wage or at a $25.00 payment which is allowed for the road inspection. Since the inspection has been completed and since you do not want any discrepancies, you seek an expeditious ruling on this matter. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) 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. 56407(10), (li.) . An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Shrenkle, R. Joan, 94 -624 November 4, 1994 Page 2 As Supervisor for West Carroll Township, Dibbert is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted ctivities. (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. 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 applying Section 3(a) to the instant matter, the Commission has determined that a Second Class Township Supervisor may only receive that compensation which is specifically allowable 'in law as authorized in the Second Class Township Code either as a supervisor, an elected public official, or as an employee with the Sbrenkle, R. Joan, 94 - 624 November 4, 1994 Page 3 compensation approved by the Board of Auditors. Therefore, as to such inspections of roads, which is a duty imposed upon Supervisors as per 5516(k) of the Second Class Township Code, 53 P.S. §65516(k), Dibbert may receive compensation for performing such function as long as the amount is specifically authorized in law. In this regard, it is unknown where the $25.00 referenced in your letter has its origins in that that amount does not appear to be set forth in the Second Class Township Code. In any event, as long as there is an hourly rate of pay or a specified amount that is authorized for performing the road inspection, Dibbert would not be precluded by the Ethics Law from receiving such compensation. However, he could not receive both an hourly wage and specified fee for performing the same duty. See Hessincer, Order 931 wherein the Commission held that a Second Class township Supervisor violated the Ethics Law when he received as compensation a double payment consisting of his roadmaster salary and an hourly rate of play as laborer €or performing the exact same duties. Therefore, Dibbert may receive compensation as either an hourly rate or pay or a set fee as long as the compensation is authorized in law. Confidential Opinion 91 -001. 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 Supervisor for West Carroll Township, James H. Pibbert is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit Dibbert as a second class township supervisor /employee from being sing Xarly compensated for perforating a road inspection as long as the amount of compensation is authorized in law. 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 evideence of good faith conduct in any other civil or crirn.nal proceeding, providing the requestor has disclosed truthfully all the; material facts and committed the acts complained of in reliance on the Advice given. Migt setter is a public record and will be made available as lodtriza,42y, . if you disagree with this Advice or' if ytu have any relation, to challenge same, you may appear the Advice ea the full Commission- A personal appearance before ate : CO.111212i SISri 0.71 Shrankle, R. Joan, 94 -624 November 4, 1994 Page 4 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 513.201). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAS transmission : (717- 787 -0806) . Failure to file such an appeal at the Commi within fifteen (15) days may result in the dismissal of the appeal. Chief Counsel