HomeMy WebLinkAbout03-526 KellerCarol S. Keller, Supervisor
Upper Nazareth Township
3100 Newburg Road
Nazareth, PA 18064
Re: Conflict; Public Official /Employee; Township; Supervisor; Employee; Compensation;
Supervisor Duties; Roadmaster; Grant Writer.
Dear Ms. Keller:
ADVICE OF COUNSEL
March 19, 2003
03 -526
This responds to your letter of February 11, 2003, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq., presents any prohibition or restrictions upon a township
supervisor with regard to receiving compensation in the form of an hourly rate of pay in
addition to her supervisor pay for: (1) phone time, additional township business, letter
writing, seminar time, and gas /mileage reimbursement; (2) work as a grant writer for the
township; or (3) work as a roadmaster if she does not work on the road crew.
Facts: As a newly elected supervisor for Upper Nazareth Township ( "Township "),
you seek an advisory from the State Ethics Commission.
The first issue you raise involves a $14 per hour rate of pay for supervisors over
and above the yearly $1,875 salary established by the Second Class Township Code.
You state that when you took office on January 6, 2003, you were given time sheets
and were told that you would be paid $14 per hour for additional work you did for the
Township. You state that when you questioned this practice, you were told by two other
supervisors that the additional pay would be for phone time, additional township
business, letter writing, seminar time, gas /mileage reimbursement, and the like.
Additionally, you have been approached by two supervisors to be a grant writer
for the Township at the rate of $14 per hour. You have agreed to accept this position;
however, you have informed the two supervisors that you have no prior experience as a
grant writer.
Keller, 03 -526
March 19, 2003
Page 2
You state that you have been advised by others that in order for you to receive
$14 per hour as the Township's grant writer, a motion must be made at a Township
meeting to make you an employee of the Township in the position of grant writer, and
the salary must be set by the Township auditors.
At the February 10, 2003, caucus meeting, you recommended that the Township
advertise for an experienced person to fill the position of grant writer. You state that you
were told that you could do the job without approval because you are a Township
employee. Thus, you ask whether it is legal for you to accept compensation at the rate
of $14 per hour as a grant writer for the Township.
Finally, you note that at the reorganization meeting, a unanimous decision was
made to make all five supervisors roadmasters at the rate of $14 per hour. You note,
however, that only one supervisor actually works on the road crew. You question
whether you may receive compensation as a roadmaster when you do not work on the
road crew.
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
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.
It is further initially noted that your inquiry may only be addressed with regard to
your own, prospective conduct. To the extent you have inquired regarding the conduct
of others, your inquiry is a third party request that cannot and will not be addressed.
As a Township Supervisor, you are a public official subject to the provisions of
the Ethics 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
Keller, 03 -526
March 19, 2003
Page 3
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. 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.
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
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.
Keller, 03 -526
March 19, 2003
Page 4
It is noted that the Commission, in the exercise of its jurisdiction, is limited to
making determinations under the Ethics Act. However, in making such determinations,
it is necessary at times to review other laws to determine whether a given benefit is
authorized so that the Commission may conclude whether a public official /employee is
receiving a private pecuniary benefit contrary to the Ethics Act. In the instant matter,
certain provisions of the Second Class Township Code must be reviewed in order to
properly apply the Ethics Act to your inquiry.
Section 65606 the Second Class Township Code provides in pertinent part:
§ 65606. Compensation of supervisors
(a) Supervisors may receive as compensation an amount
established by ordinance not in excess of the following:
Township Annual Maximum
Population Compensation
not more than 4,999
5,000 to 9,999
10,000 to 14,999
15,000 to 24,999
25,000 to 34,999
35,000 or more
$1,875
$2,500
$3,250
$4,125
$4,375
$5,000
Salaries are payable monthly or quarterly for the duties
imposed by this act.... The compensation of supervisors,
when employed as roadmasters, laborers, secretary,
treasurer, assistant secretary, assistant treasurer or in any
employe capacity not otherwise prohibited by this or any
other act, shall be determined by the board of auditors, at an
hourly, daily, weekly, semi - monthly or monthly basis, which
shall be comparable to compensation paid in the locality for
similar services. The board of supervisors may establish a
mileage allowance, under the act of July 20, 1979 (P.L. 156,
No. 51), referred to as the Uniform Mileage Fee Law, to be
paid to officers and employes for the use of a personal
vehicle when required and actually used for authorized
township business. No supervisor may receive
compensation as an employe for attending a meeting of the
board of supervisors....
53 P.S. § 65606(a).
Section 65607 of the Second Class Township Code delineates the duties of
supervisors:
§ 65607. Duties of supervisors
The board of supervisors shall:
(1) Be charged with the general governance of the
township and the execution of legislative, executive and
administrative powers in order to ensure sound fiscal
management and to secure the health, safety and welfare of
the citizens of the township.
(2) Have the responsibility for maintenance of township -
owned equipment and facilities.
Keller, 03 -526
March 19, 2003
Page 5
53 P.S. § 65607.
53 P.S. § 67302.
(3) Employ persons as may be necessary for the general
conduct of the business of the township and provide for the
compensation, organization and supervision of the persons
so employed. Records shall be kept and reports made and
filed giving the names of all persons employed, dates on
which work was done and the number of hours worked with
compensation paid to each person and the capacity in which
employed.
(4) Authorize attendance at conferences, institutes,
schools and conventions. Any supervisor, elected or
appointed officer or township employe may if directed by the
board of supervisors, attend any conference, institute, school
or convention dealing with the duties and functions of
elected or appointed officers or employes. The expenses for
attending the meetings may be paid by the township and are
limited to the registration fee, mileage for the use of a
personal vehicle or reimbursement of actual transportation
expense going to and returning from the meeting plus all
other actual expenses that the board of supervisors agrees
to pay. Every attendee shall submit to the board of
supervisors an itemized account of expenses incurred at the
meeting. The board of supervisors may authorize employes
to be compensated at their regular employe rate during their
attendance at the meeting.
(5) Annually, on or before the first day of February,
furnish to the board of auditors information on the
construction or maintenance of roads or other matters that
may be required by any department of the Commonwealth to
be included in the annual township report.
(6) Provide for the annual tax duplicate to be prepared
and presented to the tax collector.
(7) Perform duties and exercise powers as may be
imposed or conferred by law or the rules and regulations of
any agency of the Commonwealth.
§ 67302. Duties of roadmasters
The roadmasters shall:
(1) Report to the board of supervisors any information
that may be required by the board of supervisors and by the
Department of Transportation.
(2) Inspect all roads and bridges as directed by the board
of supervisors.
(3) Do or direct to be done all work necessary to carry out
the responsibilities imposed by the board of supervisors with
respect to the maintenance, repair and construction of
township roads.
Keller, 03 -526
March 19, 2003
Page 6
In applying the provisions of the Ethics Act to the instant matter, the first issue
you raise involves the $14 per hour rate of pay for supervisors over and above the
yearly salary established by the Second Class Township Code. The facts that you have
submitted do not indicate whether the rate was set by the Township auditors.
Therefore, you are generally advised that because the Second Class Township Code
requires that the compensation of supervisor employees be set by the auditors, 65 P.S.
§ 65606(a), your acceptance of Township employee compensation other than as set by
the Township auditors in conformity with the Second Class Township Code would run
afoul of Section 1103(a) of the Ethics Act. See, Cuppels, Order 1237.
Additionally, you may not receive pay as a Township employee for duties falling
within your position as Supervisor. See, Book, Order 1196; R.H. and T.W. v. State
Ethics Commission, 673 A.2d 1004 (Pa. Cmwltthi. 1996). You may not be compensated
as a Township employee for administrative duties including phone time, letter writing,
consulting with the solicitor or engineer, meetings with constituents, attending meetings
of other municipal bodies, and similar forms of 'Township business." Id. You may not
be compensated as a Township employee for attending seminars, because attendance
at seminars is one of the enumerated duties of a supervisor. 53 P.S. § 65607(4); see
also, R.H. and T.W. v. State Ethics Commission, supra (reaching a similar conclusion
under former § 516 of the Second Class Township Code).
As for gas /mileage reimbursement, the Township Board of Supervisors may
establish a mileage allowance, under the Uniform Mileage Fee Law, to be paid to
officers and employes for the use of a personal vehicle when required and actually used
for authorized township business." 53 P.S. § 65606(a). You may not obtain such a
reimbursement in any way other than as permitted by the Second Class Township
Code. For example, you may not report a greater number of hours than you have
actually worked as a Township employee in order to reimburse yourself for gas /mileage.
As for serving as a grant writer for the Township, it is not for the State Ethics
Commission to direct how you are to be designated to that position. However, in order
for you to receive compensation beyond your salary as Supervisor for serving in that
position, you must be acting as an employee of the Township and your salary must be
set by the Township auditors in conformity with the Second Class Township Code.
Finally, you note that at the reorganization meeting, a unanimous decision was
made to make all five supervisors roadmasters at the rate of $14 per hour. You
question whether you may receive compensation as a roadmaster when you do not
work on the road crew. The duties of a township roadmaster are as set forth at 53 P.S.
§ 67302, quoted above. You are advised that as to any particular compensation you
receive as a Township employee, such compensation must be for work that relates to a
position of employment that you hold with the Township.
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 Supervisor for Upper Nazareth Township ("Township"), 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. Your acceptance of Township employee
compensation other than as set by the Township auditors in conformity with the Second
Class Township Code would run afoul of Section 1103(a) of the Ethics Act. You may
not receive pay as a Township employee for duties falling within your position as
Supervisor. You may not be compensated as a Township employee for attending
seminars, because attendance at seminars is one of the enumerated duties of a
supervisor. You may not obtain gas /mileage reimbursement other than as permitted by
Keller, 03 -526
March 19, 2003
Page 7
the Second Class Township Code. For example, you may not report a greater number
of hours than you have actually worked as a Township employee in order to reimburse
yourself for gas /mileage. In order for you to receive compensation beyond your salary
as Supervisor for serving as a grant writer, you must be acting as an employee of the
Township and your salary must be set by the Township auditors in conformity with the
Second Class Township Code. As to any particular compensation you receive as a
Township employee, such compensation must be for work that relates to a position of
employment that you hold with the Township.
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