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Home My WebLink About92-550Dear Mr. DeLuce: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 27, 1992 Mr. David W. DeLuce, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043 -0109 92 -550 Re: Conflict, Public Official /Employee Mayor, Borough, Health Insurance Benefits, Group Plan, Participation at Own Expense. This responds to your letters of January 30, 1992, and February 3, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law prohibits or restricts a borough mayor and his family from being included in the borough's health insurance benefits group plan at the mayor's expense. Facts: As the Solicitor for the Borough of Wormleysburg in Cumberland County, Pennsylvania, you seek an advisory from the State Ethics Commission on behalf of the Borough's Mayor. The Mayor is an elected official who is entitled to receive, by a duly enacted ordinance, $50.00 per month. Neither the Mayor nor Borough Council members (all elected officials) receive any other benefit or compensation from the Borough. The Borough does provide fully paid health insurance benefits to its uniformed and non - uniformed employees and their dependents. The Mayor has requested that he be allowed to purchase health insurance benefits for himself and his family through the Borough's group plan. The Mayor proposes to advance to the Borough all of the money needed to pay the expenses for such coverage for himself and his family before the invoice would be paid to the insurance company. You specifically represent and assure this Commission that the Borough would not be spending any of its funds to provide such coverage for the Mayor or his family, and that the provision of health insurance benefits to the .Mayor and has family under these circumstances would have no effect on the Borough's finances. The health insurance would be wholly paid by the Mayor. Mr.. David W. DeLuce February 27, 1992 Page 2 You state that the Borough is willing is allow the Mayor: to proceed in this manner provided it does not violate the Ethics Law. Accordingly, you seek an advisory opinion as to the viability of the above proposal. Discussion: As Mayor for the Borough of Wormleysburg in Cumberland County, Pennsylvania, the Mayor 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 Activitiet. (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 indu . 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 Mr. David W. DeLuce February 27, 1992 Page 3 unique to a particular public office or position of public employment "Immediate family." A parent, spouse, child, brother or sister. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that rio 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 questiOA presented. Ip addressing the issue of whether the Borough Mayor and his family may participate in the Borough's health insurance benefits group plan at the Mayor's expense, the question of whether such participation is permissible under Borough ordinances or under the Borough Code, 53 P.S. §45101, et seq., may not be addressed. Since the State Ethics Commission does not have the jurisdiction to interpret the provisions of Borough ordinances or the Borough Code, 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 Domalakes, 85 -010, the Commission held that a borough tax collector could participate at his own expense in the borough's group insurance programs. Although Domalakes was issued under former Act 170 of 1978, 65 P.S. §401, et seq. (amended and reenacted on June 26, 1989, by Act 9 of 1989), and therefore would not be controlling, the Commission's Opinion in Keiter, Opinion 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 parti c=ipating ' at his own expense in the township's hospitalization plan. In an Advice issued under former "Act 170, it was deteiinifted 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 were to contact the insurance carrier themselves and pay all premiums for their coverage themselves. Misto;, 84 -583. Although the former Act does not apply to this case, the reasoning set Mr. David W. DeLuce February 27, 1992 Page 4 forth in Musto would apply to the circumstances you have presented. Although participation in group coverage may be deemed a private pecuniary benefit, (See ,Jeiter, Opinion 90 -004), given the fact that you have stated that the Mayor will fully bear all of the expenses for this coverage for himself and his family, and given the ready availability of group coverage plans, the participation of the Mayor and his family in the Borough's group plan would not appear under the circumstances presented in this case to present a .:conflict of interest. See also, Domalakes, Advice 91 -506. Lastly, the propriety of the inclusion of the Mayor and his family in the Borough's existing health insurance benefits group plan at the Mayor's expense 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 Borough Code and /or Borough Ordinances. Conclusion: As the Mayor for the Borough of Wormleysburg in Cumberland County, Pennsylvania, the Mayor is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit the Borough's Mayor and his family from participating in the Borough's health insurance benefits group plan at the Mayor's 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 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 s uch. 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 in writing Mr. David W. DeLuce February 27, 1992 Page 5 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. S' cerely, Vincent Dopko Chief Counsel