HomeMy WebLinkAbout93-531 GoodJohn E. Good, Esquire
John E. Good Associates
331 West Miner Street
West Chester, PA 19382
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108.1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 29, 1993
93 -531
Re: Conflict, Public Official /Employee, Township Supervisor,
Employee /Supervisor, Compensable Duties.
Dear Mr. Good:
This responds to your letters of January 14, 1993, February
11, 1993, and February 22, 1993, 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 a township supervisor
who has been appointed road master and laborer, with regard to
being compensated for maintaining township vehicles and
construction equipment, and checking disposal permits and operating
a backhoe at the township central trash disposal site.
Facts: As Solicitor for Honey Brook Township, Chester County,
Pennsylvania, you seek an advisory on behalf of Mr. Donald Johnson,
a Township Supervisor. A question has arisen as to whether a
Township Supervisor may be employed by the Township as a part -time
mechanic to perform mechanical work on Township police cars and in
addition perform certain laborer functions in connection with the
Township park. You present the following factual scenario with
regard to Mr. Donald Johnson:
Mr. Johnson, at the reorganizational
meeting of the Board of Supervisors, was
appointed road master and laborer of the
Township. His labor responsibilities include
maintenance of Township vehicles including
construction equipment such as backhoes,
Township trucks and maintenance on Township
police vehicles. Mr. Johnson further carries
out the normal duties of a road master. In
John E. GoOd, Esquire
March 29, 1993
Page 2
addition, in his capacity as a "laborer," Mr.
JOhnsbn is involved with construction
activities for the Township recreational park
and maintenance activities in that regard.
Further, as a laborer and equipment operator
he assists in the trash disposal in the
Township. The Township has a central trash
disposal site located at the Township
building. Mr. Johnson oversees that trash
disposal by checking permits and operating the
backhoe from time to time in order to compact
trash which is put in a large receptacle and
is then disposed of by other licensed haulers
at a licensed disposal site.
Letter of February 11, 1993, at 1.
You state that the Township is familiar with Section 410 of
the Second Class Township Code which in essence prohibits a
Township Supervisor from holding any other appointive or elective
position except secretary- treasurer and road master. You note that
Section 515 of the Township Code permits a Supervisor to be
employed as a superintendent, road master or laborer, and that it
would appear that the use of the word "laborer" is not necessarily
restricted to a laborer on the roads. You further state that
Section 410 is somewhat ambiguous in that presumably a laborer is
not an "elective or appointive office or position."
You indicate that it is fairly common practice for a Township
Supervisor to be appointed as laborer or employee on non -road
related work functions. You recognize that the Supervisors' wages
or salary must be approved and fixed by the Township Auditors. You
point out that Mr. Johnson's hourly pay has been approved by the
Township Board of Auditors as required by the Second Class Township
Code. You believe that the scope of duties as outlined above is
perfectly appropriate for Mr. Johnson to carry out. You state that
you have so advised the Board.
However, you state that the Department of Community Affairs
has advised one of the Supervisors that a Supervisor may not hold
any other position except goad master and laborer and that the
laborer classification is related to road work only. You do not
read the Township Code in that respect and disagree with the
Department of Community Affairs. Nevertheless, because this issue
has been raised by the Department of Community Affairs, the
Township is desirous of making sure that everything is being
accomplished' in accordance with applicable law and pursuant to the
State Ethics Law and the regulations and opinions developed
thereunder.
John E. Good, Esquire
March 29, 1993
Page 3
You have reviewed the State Ethics Commission's findings in
Henderson, Order No. 818. You believe that Henderson does not
address the specific_ that exists in Honey Brook Township
regarding the duties outlined above.
Based upon the above, you request an advisory from the State
Ethics Commission.
Discussion: As a Township Supervisor for Money Brook Township in
Chester County, Pennsylvania, Mr. Donald Johnson 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 Activities.
(a) No public official or public
:employee shall _ in conduct that
constitutes a coflict 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 lava, the eliefcise bf
which is necessary to the performance of
duties and responsibilities unique to a
particular public office or position of public
employment.
John E.° Good, Esquire
March 29, 1993
Page 4
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 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.
Section 3(j) of the Ethics Law provides as follows:
Section 3. Restricted activities.
(j) Where voting conflicts are not
otherwise addressed by the Constitution of
Pennsylvania or by any law, rule, regulation,
order or ordinance, the following procedure
shall be employed. Any public official or
public employee, who in the discharge of his
official duties, would be required to - vote on
a matter that would result in a conflict of
interest shall abstain from voting and, prior
to the vote being taken, publicly announce and
disclose the nature of his interest as a
public record in a written memorandum filed
with the person responsible for the
minutes of the meeting at which the vote is
taken, provided that whenever a governing body
would be unable to take any action on a matter
before it because the number of members of the
body required to abstain from voting under the
provisions of this section makes the majority
or other legally required vote of approval
Unattainable, then such members shall be
permitted to vote if disclosures are made as
otherwise provided herein. In the case of a
three- member governing body of a political
subdivision, where one member has abstained
from voting as a result of a conflict of
interest, and the remaining two members of the
governing body have cast opposing votes, the
member who has abstained shall be permitted to
vote to break the tie vote if disclosure is
made as otherwise pfovided herein:
if a conflict exists, Section 3(j) requires the public
official /emplo ee to abstain and to publicly disclose the
abstentioft and . reasons for same, both orally and by filing a
written ine i6fandthn to that effect with the person recording the
John E. Good, Esquire
March 29, 1993
Page 5
minutes or supervisor.
In applying the above provisions of. the Law to' the
circumstances which you have submitted, the Commission's decisions
in Sitek, Order No. 817, and .Henderson, Order No. 818, - are
applicable.
In Sitek, Order No. 817, Sitek, who was a township supervisor
and a township employee, was alleged to have received compensation
not related to the duties of road master or laborer. In 1990,
Sitek had performed 358.5 hours of work on building repairs and
renovations, 15 hours of census survey work, and 12.5 hours of
trips to the surplus store. The sole violation which the
Commission found pertained to the hours of work conducting a
census survey, which the Commission found would be part of the
administrative duties of an elected supervisor.
In Henderson, Order No. 818, Henderson, who was also , a
township supervisor_and a township employee, had been compensated
in 1990 for Working 213 hours as to the computer, 13 hours on a
census survey, 464.25 hours on building repairs /renovations and
138.75 hours as to general office duties. In 1991, he was
compensated. 3_ hours as to the computer, 4 hours as to meetings, and
1 hour as to the building. In reviewing the various duties which
Henderson 'had performed, the Commission found that some duties,
such as worAcing the municipal garage, appeared to be related to
the position of employee /supervisor and therefore no violation was
found as to such activities. On the other hand, activities such as
budget, financial and computer activities, clearly related to
duties of the office of supervisor, and consequently a violation of
Section 3(a) was found as to the receipt of additional compensation
for performing such activities.
In applying the above Commission decisions to the facts which
you have submitted, the duties of maintenance of Township vehicles
and construction equipment; maintenance activities for the Township
recreational park; and operation of the backhoe at the central
trash disposal site to compact trash would appear to be properly
related to Mr. Johnson's duties as an employee /supervisor such that
compensation for performance of same would not be prohibited under
Section 3(a) of the Ethics Law. However, the duty of "overseeing"
trash disposal by checking permits would appear to be within the
administrative functions performed by Mr. Johnson in his capacity
as a Township Supervisor, and therefore, he could not be
compensated as to that function.
The propriety of the proposed conduct 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
John E. Good, Esquire
March 29, 1993
Page 6
such.
interpretation of the Ethics Law.
Conclusion: As a Township Supervisor for Honey Brook Township in
Chester County, Pennsylvania, Mr. Donald Johnson is a public
official subject to the provisions of the Ethics Law. Having been
appointed road master and laborer, Mr. Johnson's duties of
maintenance of Township 'vehic and construction equipment;
maintenance activities for the Township recreational park; and
operation of the backhoe at the central trash disposal site to
compact trash would be properly related to his duties as an
employee /supervisor, such that compensation: for performance of same
would not be prohibited under Section 3(a) of the Ethics Law.
However, the duty of "overseeing" trash disposal by checking
permits would be within the administrative functions- performed by
Mr. 'Johnson- in his capacity as a Township Supervisor, and
therefore, he could not be compensated as to that function.
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 requester 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
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: be - fore the Commission
will be scheduled and a formal Opinion from the Commission will be
issued. Any such appeal must be in writing and must be received at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code 52.12.
- Vincent . .-Dopko
Chief Counsel
available as