Loading...
HomeMy WebLinkAbout93-564Robert F. Musser, Esquire Musser and Jewell 121 East King Street Lancaster, PA 17602 STATE ETHICS COMMISSION 309 FINANCE - BUILDING R0.80)(11470 HARRISBURG, PA 17108-1 • TELEPHONE(717)765-1610 ADVICE OF COUNSEL May 18., 1993 93 -564 Re: - Conflict, Public Employee, Township Sewage Enforcement Officer, Part -Time Employee, Township Supervisors, Vo Township Paid Group Life Insurance,, Cash Surrender Value, Payment of Proceeds to Sewage Enforcement Officer. Dear Mr. Musser: - This responds to- your letters of April 29,-1993, and May 6, 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 second class township supervisors from paying or a part -time sewage enforcement officer from receivin4 - accumulated cash surrender value of a life insurance policy, purchased by the township for township employees. Facts: As Solicitor for a second class Township, you request an advisory from the State Ethics Commission. The Sewage Enforcement Officer is employed part -time by the Township in question and also is employed on a part -time basis by fourteen other municipalities. He has served as the Sewage Enforcement Officer in the Township which you represent -since 1966. In 1972, the Township purchased a group life insurance policy which covered several Township employees including the Sewage Enforcement Officer. The Township owned the policy and paid all premiums. The policy accumulated cash surrender value. Earlier this year, the Township surrendered the policy and received a check from the insurance company payable to the Township in the amount of approximately $18,800.00. The Supervisors would like to pay,this money to the Sewage Enforcement Officer. You believe that the . purchase of this policy in 1972 did not Robert F. Musser, Esquire May 18, 1993 Page 2 violate any provision of the Township, Code, although you feel that subsequent enactments- may be applicable. You state that 53 P.S. S65713(D) prevents elected officials and non - employee township officials from partic ipating in life insurance contracts paid for by the township, however, that Section does not expressly apply to employees of the township, and it was not in effect at the time this particular life insurance contract was entered into. You refer to a clause in that Section which excludes from the prohibition contracts entered into between 1959 and 1985. You further refer- to 53 P.S. §65515 which provides that in the case of supervisor employees, no policy of group life insurance shall contain any provision for the accrual or deferral of a cash surrender value, loan value or other non - forfeitable benefit. You believe that this provision would not apply to the policy in this case because this Section applies only to supervisor employees and their dependents, not to sewage enforcement officers. Additionally, you state that it does not appear to you that this provision was in effect at the time this insurance contract was entered into. You have found no clear statement in the Township Code prohibiting the distribution of the cash surrender value to the Sewage Enforcement Officer. However, you request an advisory as to whether the distribution of the cash surrender value to the Sewage Enforcement Officer would be a violation of the Ethics Law. Discussion: In your letter of May 6, 1993, you state that both the Sewage Enforcement officer and the Township Board of Supervisors have authorized you to seek the advice of the State Ethics Commission regarding this matter. Accordingly, this Advice will address this question from both perspectives. It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. S §407(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. SS407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. A Sewage Enforcement Officer for a second class Township is ? public employee as that term is .defined under the Ethics Law. Further, Supervisors for a second class township are public officials as that term is defined under the Ethics Law. Hence, all are subject to the prow slons of that law. Robert F. Musser, Esquire May 18, 1993 Page 3 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 ininimis 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 duties and :retpoisibilities 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 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 pubiic 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. Robert F. Musser, Esquire May 18, 1993 Page 4 Section 3(j) of the Ethics Law provides as follows: Sedti.on ..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, Mould 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 diddlose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording 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 provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority Is unattainable due to the abstention(a) from 'conflict under the Ethics Law, then in that event participation is permissible provided the disc - losure requirements noted above ,are followed. See, Mlakar, Advice 91-523-S. In reviewing the question posed, this Advice is limited to whether a Supervisor may vote to give and whether the Sewage Robert F. Musser, Esquire May 18, 1993 Page 5 Enforcement Officer may receive the 'funds obtained by the Township as a result of surrendering the group life insurance policy covering Township employees, including the Sewage Enforcement Officer, under the State Ethics Law. Although this Commission does not have express statutory .jurisdiction to interpret the Second Class Township Code, it is: necessary to review 53 P.E. SS65515, 65516 and 65713 to the extent that they impact upon the Ethics Law regarding the issue of whether any individuals would be using the authority of office to obtain private pecuniary benefits for themselves The Second Class Township Code provides as follows: (1) Supervisors and their dependents shall be eligible for inclusion in group life, health, hospitalization, medical service and accident insurance plans paid in whole or in part by the township. No policy of group life insurance shall contain any provision for the •accrual or deferral of a cash surrender value, loan value or any other nonforfeitable benefit, in addition to or beyond the face amount of insurance, that shall inure to the benefit of the supervisor, any beneficiary or any other individual having an insurable interest in the life of a supervisor. . 53 P.S. S65515(c)(1). The Second. Class Township 53 P.S. §65516(e). The township supervisors employed roadmasters, shall -- Code further provides as follows: supervisors or the as superintendents or (e) Employ or hire such persons, as may be necessary for the general conduct of the business of the township, and provide for the organization and supervision of the persons so employed, and work on the roads themselves when directed to do so by the board of supervisors. Records shall be kept, and reports made and filed, giving the names of all persons employed, including supervisors, superintendent or roadmasters, dates on which work was done, and the. number of hours worked with compensation paid to each person and the capacity in which he is employed, Robert P. Musser, Esquire May 18, 1993 Page 6 The Second Class Township Code further provides as follows: D. To make contracts of insurance with" any insurance company, or nonprofit hospitalization corporation, or nonprofit medical service corporation, authorized to transact business within the Commonwealth, insuring its township supervisors pursuant to section 515, and employes, and /or their dependents, or any class or classes thereof, under a policy or policies of group insurance covering life, health, hospitalization, medical service, or accident insurance, and may contract with any such company, granting annuities or pensions; for the pensioning of such employes, and for such purposes, may agree to pay part of all of the premiums or charges for carrying such contracts, and may appropriate out of its treasury any money necessary to pay such premiums, or charges, or portions thereof. The supervisors are hereby authorized, enabled and permitted to deduct from_the employe's pay, salary or compensation such part of the premium, or charge, as is payable by the employe, and as may be so authorized by the employe in writing. . . . 53 P.S. S65713(D). It is clear that on the face of the above provisions that the Township Supervisors may employ such 'persons, including the Township Sewage Enforcement Officer, as is necessary for the general conduct of the business of the Township. Also, the Township Supervisors, in employing such persons, are permitted to establish compensation for such persons. It is further clear on the face of the above provisions that the Township may make contracts of insurance with any insurance Company insuring Township Supervisors pursuant to Section 515, and insuring employees pursuant to Section 713. However, there is no prohibition against policies containing provisions for accrual or deferral of a cash surrender value in Section 65713 as there is in Section 65515. In considering the above provisions to the;extent that they impact upon the Ethics Law, Section 3(a) of the Ethics Law prohibits the use of authority of public office or public employment or confidential information received by holding such a public position for the private pecuniary benefit of the public Official or public employee or any member of his immediate family •Section 3(a) of the Ethics Law would not prohibit the Township Robert F. Musser, Esquire May 18, 1993 Page 7 Supervisors from.. voting t'o award, or the Township Sewage Enforcement Officer from receiving, the cash surrender value of the insurance policy.. A postscript is necessary so that this Advice is not misconstrued. First, as noted above, the Commission's jurisdiction is limited to interpreting the provisions of the Ethics Law. Second, this Advice is based upon the express condition that there are no improper understandings which would transgress Sections 3(b) and/or 3(c) of the Ethics Law. • Third, the public officials and public employees must be mindful of the Preamble of the Ethics Law: (a) The legislature Hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or nominees or candidates for public office do not conflict with the public trust. Because public confidence in government can best be Sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete: financial disclosure as . specified in this act. Furthermore, it is recognized that clear guidelines are needed in order to guide public officials and employees in their actions. Thus, the General Assembly by this act intends to define as clearly as possible those areas which represent conflict with the public trust. 65 P.S. 5401. Since public office and public employment are matters of public trust, any effort to realize personal financial gain through office or employment is considered a violation of that trust. The Supervisors are reminded that the benefits in question were paid for by tax revenues from the Township which they :represent. Therefore, although awarding Township paid insurance benefits to the Sewage Enforcement Officer would not be prohibited •py the Ethics Law, the Supervisors should consider whether the better practice would be to `limit or forgo the payment 'of such benefits. tobett'F. Musser, Esquire May 18, 19` -93 Page 8 Finally, in your letter, you state that the group. l e insurance policy covered several Township employees, (emphY s added), however, you seek advice on paying the proceeds to the Sewage Enforcement Officer only This Advice expressly does, pt address what rights, if any, other Township employees who were covered by the policy may have to such proceeds. The propriety of the proposed conduct has Only been addressed under the Ethics Law; the applicability of any other statute co) 2,, ordinance, regulation or other code of conduct other than_ he 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 Second Class Township Code. Conclusion: Township Supervisors and the Sewage Enforcement Officer for a second class .township are public officials and a public employee subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not prohibit the Township Supervisors from awarding or the Sewage Enforcement Officer from receiving the cash surrender value of the group life insurance policy paid for by the Township, public office/ employment is a public trust and proposed conduct should be governed accordingly. 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 a such. Finally, if you disagree with this Advice or if you have 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 and must be received at the Commission within 15 days of,the date of this Advice pursuant to 51- Pa Code §13.2(h). cerely, Vincent 7. Dopko Chief Counsel