Loading...
HomeMy WebLinkAbout03-572 GroffDear Mr. Crosswell: ADVICE OF COUNSEL William C. Crosswell, Esquire Morgan, Hallgren, Crosswell & Kane, P.C. P.O. Box 4686 Lancaster, PA 17604 4686 July 22, 2003 03 -572 Re: Conflict; Public Official /Employee; Supervisor; Roadmaster; Township; Second Class Township Code; Ethics Act, Supersede; Three Member Board; Vote; Vacation; Auditors; Compensation; Benefits. This responds to your letter of June 23, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1a. =S. § 1101 et seq., presents any prohibition or restrictions upon a township supervisor on a three member board from voting for his own appointment as roadmaster and receiving vacation benefits that differ from non - supervisor township employees. Facts: Your office represents the Board of Supervisors of Pequea Township, aster County, PA ( "Township "), a second -class township with a three - member board. Several conflicts of interest issues have arisen relative to the potential employment of one of the supervisors, Bruce G. Groff (Groff), as the township roadmaster. The members of the Board of Supervisors have concerns about Groff's ability to vote for his own appointment and his receipt of a total compensation package. Groff has authorized you to make a formal request for an advisory opinion relative to the following issues: 1. May Groff vote for his own appointment as the Township roadmaster if he sits on a three - member board? 2. Do the voting provisions of the Second Class Township Code (Code) supersede the Ethics Act. 3. What effect would a different compensation for Groff have on other township employees regarding vacation benefits? Crosswell- Groff, 03 -572 July 22, 2003 Page 2 The Township currently employs a full -time roadmaster who is willing to forego the position if Groff is appointed in his place. Groff is currently Vice Chairman of the board and is applying for the roadmaster position. After stating that Groff may hold the position of township roadmaster as per Section 602(c) of the Code, you believe there may be a conflict between the Code and the Ethics Act relative to Groff's ability to participate in the vote for his own appointment to the roadmaster position. You quote Section 602(a) of the Code regarding the ability of a supervisor to vote for himself as an employee regardless of whether there is a tie vote or other necessity: . With regard to boards of supervisors which are designated as three - member boards, any supervisor who is to be considered by the board for any appointed township position or for employment by the township as authorized by law shall not be excluded from voting on the issue of such appointment and employment. Action taken by a supervisor shall be deemed to be within the scope of authority as a supervisor and shall not be deemed to constitute an illegal or improper conflict of interest. 65 P.S. 65 602(a) You state that the above Code section appears to contradict the voting provisions of the Ethics Act which prohibit a public official from engaging in a conflict of interest when a private pecuniary benefit is involved. You opine that Section 1103(j) of the Ethics Act addresses a public official's ability to vote on certain matters when a conflict of interest occurs and allows a public official, on a three - member panel who previously abstained, to vote to break a tie if the member discloses the conflict of interest. You then state that although the Code permits an official to vote for his potential employment with no restrictions, the Ethics Act permits such a vote only in the situation of a tie. You ask whether Groff may vote on his own appointment as township roadmaster. You inquire whether the may supersede[s] the Ethics Act by permitting a public pecuniary interest created by law, rather than a privately sought pecuniary interest as prohibited in the Ethics Act? If Mr. Groff may vote for himself, are there any requirements for the Township to seek out other qualified applicants for the position or is the ability to vote for oneself unlimited in scope even if such action is perceived by others to result in an advantage over other possible applicants." (June 23, 2003, letter of Crosswell at 2.) After noting that the township supervisors have established uniform vacation benefits to township employees pursuant to a written personnel policy based on years of service and that the township elected auditors would determine Groff's full compensation package, including allowable vacation if he is appointed roadmaster, you inquire whether Groff may request different vacation benefits from those provided to current Township employees. In this regard, you reference §606(a) of the Code and McClutheon v. State Ethics Commission, 77 Pa. Commonwealth Ct. 529, 466 A.2d 283 (1983). You note that Groff as a township supervisor would not be directly involved with the determination of his own roadmaster salary /benefits even though the board of supervisors makes the determination of salary and benefits for all non - supervisor township employees. You believe there is a conflict question presently or in the future relative to a determination of vacation benefits for Groff or other Township employees. You seek an advisory as to any potential conflict of interest as to a vacation benefit differentiation between Groff and other Township employees. Crosswell- Groff, 03 -572 July 22, 2003 Page 3 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. As a Supervisor for the Township of Pequea, Groff is 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. 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 Crosswell- Groff, 03 -572 July 22, 2003 Page 4 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. Section 1103(a) of the Ethics Act prohibits a public official /public employee 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. The three questions you pose will now be addressed. Regarding the propriety of Groff voting on his own appointment as roadmaster, such action is specifically authorized by the Code. See, 51 P.S. 65602(a). The Commission has held that when there is such an authorization in law, then the use of authority of office to obtain the financial gain is compensation provided by law and permitted under Section 1103(a) of the Ethics Act. See, Akerly, Order 976. Accordingly, Groff as a supervisor on a three - member board may vote, consistent with Section 1103(a) of the Ethics Act, for his own appointment as roadmaster. As to your second inquiry concerning whether the Code voting provision supersedes the Ethics Act, you are advised as follows. Section 1112 of the Ethics provides: § 1112. Conflict of law Except as otherwise provided in Chapter 13 (relating to lobby regulation and disclosure), if the provisions of this Crosswell- Groff, 03 -572 July 22, 2003 Page 5 chapter conflict with any other statute, ordinance, regulation or rule, the provisions of this chapter shall control. 65 Pa.C.S. §1112 However, in this case, since there is no conflict between the Ethics Act and Code, Section 1112 of the Ethics Act is not operative. Your third and final inquiry relates to Groff's compensation as a township employee (roadmaster) and in particular vacation time. Section 606(a) of the Code provides in part: 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. 65 P.S. 65606(a) Groff could not, through the board of supervisors, set his compensation and vacation benefits as a township employee as such would be contrary to §1103(a) of the Ethics Act. Groff may receive vacation benefits as a township employee as set by the auditors. The fact that the benefit may be the same or different as those provided by the board of supervisors to the non - supervisor township employees does not implicate the Ethics Act. As to what action the non - supervisor township employees may take if Groff's vacation benefit differs (is higher), that question is beyond the scope of the Ethics Act. 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 the Township of Pequea, Bruce G. Groff is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Groff, as a township supervisor on a three member board, may vote for his own appointment as roadmaster and receive vacation benefits set by the township auditors, even though the vacation benefits may differ from those of non - supervisor township employees. 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. Crosswell- Groff, 03 -572 July 22, 2003 Page 6 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