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Home My WebLink About03-004 FerrieOPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Donald M. McCurdy DATE DECIDED: 6/23/03 DATE MAILED: 7/8/03 03 -004 Kelly Ferrie, Vice Chairman Elk Township Supervisors R. D. #1, Box 1648 Russell, PA 16345 Re: Conflict; Public Official /Employee; Township Supervisor; Full -Time Township Employee; Official Action to Provide Township Health Insuranceto Dependents of Full - Time Township Employees. Dear Mr. Ferrie: This Opinion is issued in response to your advisory request dated April 21, 2003. I. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would present any prohibition or restrictions upon a township supervisor who is also a full -time township employee with regard to official action to provide township health insurance to dependents of full -time township employees. II. FACTUAL BASIS FOR DETERMINATION: As a Township Supervisor for Elk Township ( "Township "), you seek an advisory opinion from this Commission based upon the following submitted facts. The Township Board of Supervisors ( "Board ") is a three - member Board. You are employed by the Township as one of two full -time road crew members. The other full -time road crew member is also a Township Supervisor. Currently, the Township provides health insurance to its full -time employees. You ask whether it would be a conflict of interest under the Ethics Act for you to vote for a change that would provide Township health insurance to dependents of full -time Township employees. Ferrie 03 -004 July 8, 2003 Page 2 By letter dated May 20, 2003, you were notified of the date, time and location of the public meeting at which your request would be considered. III. 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, this 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. 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 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. "Immediate family." A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102. Section 1103(j) of the Ethics Act provides as follows: Ferrie 03 -004 July 8, 2003 Page 3 § 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). 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. 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 applying the above provisions of the Ethics Act to the instant matter, there is no question that by participating in official action to make the Township health insurance applicable to the dependents of full -time Township employees, you would be using the authority of your public position. See, 53 P.S. § 66512(d). It is also clear that the receipt of insurance benefits fully or partially at township expense is a pecuniary benefit. See, Galizia, Order 1186; Dusenberry Order 1064. However, what must be determined is whether such benefits would constitute a private pecuniary benefit completing the elements for a conflict of interest under Section 1103(a) of the Ethics Act. Governmentally paid insurance coverage is a private pecuniary benefit if it is not authorized by law. Dawson, Opinion 97 -003 (see also, Krane, Opinion 84 -001; Cowie, Opinion 84 -010; Davis, Opinion 84 -012; and Domalakes, Opinion 85 -010 for decisions under Act 170 of 1978). Although this Commission does not have the statutory jurisdiction to interpret laws other than the Ethics Act, such other laws do become relevant in determining whether a particular pecuniary benefit is authorized in law and therefore permitted under the Ethics Act, or is not authorized in law and therefore considered a private pecuniary benefit which may form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See, Ferrie 03 -004 July 8, 2003 Page 4 O'Connor, Order 1269 at 26; Thomson, Opinion 99 -005, at 3 -4. See also, Patterson, Order 1023; Rohanna, Opinion 01 -003; Marsh, Opinion 93 -007. In the instant matter, the Second Class Township Code provides, in pertinent part: § 65606. Compensation of supervisors (c) In addition to the compensation authorized under this section, supervisors while in office or while in the employ of the township may be eligible for inclusion in township -paid insurance plans, as follows: (1) Supervisors, whether or not they are employed by the township, and their dependents are eligible for inclusion in group life, health, hospitalization, medical service and accident insurance plans paid in whole or in part by the township. Their inclusion in those plans does not require auditor approval, but does require submission of a letter requesting participation at a regularly scheduled meeting of the board of supervisors before commencing participation. The insurance shall be uniformly applicable to those covered and shall not give eligibility preference to or improperly discriminate in favor of supervisors.. 53 P.S. § 65606(c)(1). On its face, the above section of the Second Class Township Code provides that supervisors (regardless of their employment status with the township) and the dependents of supervisors are eligible for insurance benefits provided they submit a written letter requesting participation at a regular board meeting and meet the three conditions that the plan is uniform, nondiscriminatory and nonpreferential as to eligibility. See, Akerly, Order 976; Galizia, supra. Given that the Second Class Township Code specifically authorizes township -paid health insurance coverage for supervisors' dependents, you are advised that it would not be a conflict of interest under the Ethics Act for you to participate as a Township Supervisor in official action to make the Township - provided health insurance applicable to the dependents of full -time Township employees. Even if you /your dependents would financially benefit from such action, the requisite element of a private pecuniary benefit would be lacking because such benefits are authorized in law. The propriety of the proposed conduct has only been addressed under the Ethics Act. IV. CONCLUSION: A township supervisor is a public official subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Given that the Second Class Township Code specifically authorizes township -paid health insurance coverage for supervisors and their dependents, it would not be a conflict of interest under the Ethics Act for a township supervisor who is a full -time township employee to participate in official action to make the township- provided health insurance applicable to the dependents of full -time township employees. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. Ferrie 03 -004 July 8, 2003 Page 5 This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair