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HomeMy WebLinkAbout03-501 ContiKathaleen Conti 1042 Moon Run Road McKees Rocks, PA 15136 Re: Conflict; Public Official /Employee; Member; Municipal Authority of the Township of Robinson; Participation in Authority Group Dental Health Insurance Plan At Own Expense. Dear Ms. Conti: ADVICE OF COUNSEL January 9, 2003 03 -501 This responds to your letter of December 3, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.G.S. § 1101 et seq., presents any prohibition or restrictions upon a board member of a municipal authority as to participating in the authority's group dental health insurance plan at the board member's own expense. Facts: You have served as an appointed board member of the Municipal Authority of the Township of Robinson ('Authority ") since March 1988, and Vice - Chairman of the Authority for at least the past seven years. As a retired school teacher, you currently have medical coverage through the teachers' group plan, but given your serious health problems, you would like to purchase the Authority's group dental health insurance plan at the group rate for Authority employees. You state that you do not want the Authority to pick up the cost of your dental health coverage. You ask whether under the Ethics Act, you may participate in the Authority's group dental health insurance plan at your own expense. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(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 Conti 03 -501 January 9, 2003 Page 2 material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(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 Municipal Authority of the Township of Robinson ( "Authority "), you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms are defined in the Ethics Act as follows: § 1102. 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. The term 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 duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 judgment 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 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (j) Voting conflict. - -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or Conti 03 -501 January 9, 2003 Page 3 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 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. 65 Pa.C.S. § 1103(j). In each instance of a conflict, Section 1103(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(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. A pecuniary benefit which is authorized in law is not a "private" pecuniary benefit. Conversely, a pecuniary benefit which is not authorized in law is a "private" pecuniary benefit. Wagner, Order No. 1028 at 12. — Although the State Ethics Commission does not have the statutory jurisdiction to interpret laws other than the Ethics Act, it may in certain instances be necessary to review certain provisions of other laws to the extent that those laws impact upon the Ethics Act. The Municipality Authorities Act, 53 Pa.C.S. § 5601 et seq. provides in pertinent part as follows: § 5607. Purposes and powers. (c11 POWERS. - -EVERY AUTHORITY MAY EXERCISE ALL POWERS NECESSARY OR CONVENIENT FOR THE CARRYING OUT OF THE PURPOSES SET FORTH IN THIS SECTION, Conti 03 -501 January 9, 2003 Page 4 INCLUDING, BUT WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE FOLLOWING RIGHTS AND POWERS: (ii) To make contracts with an insurance company, association or exchange or any hospital plan corporation or professional health service corporation authorized to transact business in this Commonwealth insuring or covering its employees and their dependents but not its appointed officers and officials nor their dependents for hospital and medical benefits and to contract for its employees but not its appointed officers and officials with an insurance company, association or exchange authorized to transact business in this Commonwealth granting annuities or to establish, maintain, operate and administer its own pension plan covering its employees, but not its appointed officers and officials. (iii) For the purposes set forth under this paragraph, to agree to pay part or all of the cost of this insurance, including the premiums or charges for carrying these contracts, and to appropriate out of its treasury any money necessary to pay such costs, premiums or charges. The proper officers of the authority who are authorized to enter into such contracts are authorized, enabled and permitted to deduct from the officers' or employees' pay, salary or compensation that part of the premium or cost which is payable by the officer or employee and as may be so authorized by the officer or employee in writing. 53 Pa.C.S. § 5607(d)(20)(ii), (iii). It would appear that the above quoted provisions on their face strictly prohibit a board member from participating in an authority's health insurance coverage under any circumstances whatsoever, that is, at authority expense or at the board member's own expense. However, the State Ethics Commission's jurisdiction is limited to the Ethics Act and only peripherally involves other laws to determine whether a particular pecuniary benefit is not authorized, or "private." Therefore, until an appropriate judicial forum interprets the relevant portions of the Municipality Authorities Act, it remains unclear as to whether a board member may participate in an authority's health insurance plan at the board member's own expense Until such time, the necessary conclusion is that to the extent the Municipal Authorities Act would prohibit such participation in the authority's health insurance plan by a board member at his own expense, so too would the Ethics Act. At present, the State Ethics Commission is not aware of any judicial precedent interpreting the above provisions. It is noted that the Commission has considered the issue of participation by public officials in municipal health insurance group plans at their own expense and has determined that such participation does not present a conflict under the Ethics Act as long as the public official does not use the authority of office in obtaining his own coverage. See, Domalakes, Opinion 85 -010; Keiter, Opinion 90 -004; Dawson, Opinion 97 -003. However, such prior Commission rulings were based upon facts which involved types of municipalities other than municipal authorities, which is at issue here. Further, such other municipal codes contained no prohibition as to the receipt of health coverage by the public official at municipal expense or at the public official's expense. Therefore, in your case, if it is judicially determined that a board member may participate at his /her own expense, and if you, as a board member, do not use the Conti 03 -501 January 9, 2003 Page 5 authority of your office to provide for your own participation in the Authority's group dental health insurance plan, as for example, where such action would be taken by the Authority with your abstention, then you may participate at your own expense in that plan. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a board member of the Municipal Authority of the Township of Robinson ( "Authority "), you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Under Section 1103(a) of the Ethics Act, you may or may not be allowed to participate at your own expense in the Authority's group dental health insurance plan depending upon the appropriate judicial forum determining whether such participation is permissible under the Municipality Authorities Act. Until such judicial determination is made, the necessary conclusion is that to the extent the Municipal Authorities Act would prohibit participation by a board member in an authority's health insurance plan at his own expense, so too would the Ethics Act. If it is judicially determined that a board member may participate at his /her own expense, and if you, as a board member, do not use the authority of your office to provide for your own participation in the Authority's group dental health insurance plan, as for example, where such action would be taken by the Authority with your abstention, then you may participate at your own expense in that plan. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an 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, provided 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 thirty (30) 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. Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel