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HomeMy WebLinkAbout03-009 BlazosekDear Mr. Blazosek: I. ISSUE: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Donald M. McCurdy Michael J. Healey Paul M. Henry DATE DECIDED: 9/16/03 DATE MAILED: 9/29/03 03 -009 Joseph M. Blazosek, Esquire 225 Wyoming Avenue West Pittston, PA 18643 Re: Conflict; Public Official /Employee; Member; Transit Authority; Personnel Policy; Mileage Reimbursement for Transit Authority Board Members. This Opinion is issued in response to your advisory request letters dated April 24, May 1, and July 3, 2003. Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would present any prohibition or restrictions upon members of a transit authority with regard to a proposed personnel policy change that would allow the authority members to be reimbursed for mileage for use of their private vehicles while attending to authority business. II. FACTUAL BASIS FOR DETERMINATION: As Solicitor for the Luzerne County Transportation Authority ( "Transit Authority "), you have been authorized by Members of the Transit Authority Board to seek an advisory opinion from this Commission regarding a proposed change to the Transit Authority's personnel policy. Specifically, the Transit Authority's current personnel policy permits employees to be reimbursed for mileage when they use their personal automobiles for Transit Authority business. The question that you pose is whether it would be permissible under the Ethics Act for the personnel policy to be changed so as to also permit Board Members to receive the same mileage reimbursement for use of their private automobiles for Transit Authority business, including, for example, trips from their homes to the Transit Authority office for the purpose of signing documents. By letter dated August 7, 2003, you were notified of the date, time and location of the public meeting at which your request would be considered. Blazosek 03 -009 September 29, 2003 Page 2 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 that the requestor has submitted. In issuing the advisory based upon the facts that the requestor has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that 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 Members of the Transit Authority Board, the individuals on whose behalf you have inquired are public officials subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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(a), (j). The following terms pertaining to conflicts of interest 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 Blazosek 03 -009 September 29, 2003 Page 3 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. 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 the instant matter, there is no question that by participating in official action to change the Transit Authority's personnel policy, the Transit Authority Members on whose behalf you have inquired would be "using the authority" of their public positions. See 53 Pa.C.S. § 5607(d). It is also clear that mileage reimbursements would constitute a pecuniary benefit to the Transit Authority Members. However, what must be determined is whether such mileage reimbursements would constitute a private ecuniary benefit completing the elements for a conflict of interest under Section 1103(a) of the Ethics Act. 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 O'Connor, Order 1269 at 26; Ferrie, Opinion 03 -004; Thompson, Opinion 99 -005, at 3 -4. See also, Patterson, Order 1023; Rohanna, Opinion 01 -003; Marsh, Opinion 93 -007. In considering your inquiry, we note that the Municipality Authorities Act provides, in pertinent part, as follows: § 5610. Governing body (d) Successor. Members shall hold office until their successors have been appointed and may succeed themselves and, except members of the boards of authorities organized or created by a school district, shall receive such salaries as may be determined by the governing body of the municipality, but no salaries shall be increased or diminished by a governing body during the term for which the member shall have been appointed. 53 Pa.C.S. § 5610(d) (Emphasis added). Blazosek 03 -009 September 29, 2003 Page 4 On its face, the above provision of law clearly establishes two points: (1) the Municipality Authorities Act expressly authorizes only salaries, not mileage reimbursements, for authority board members; and (2) the Municipality Authorities Act requires that the salaries of authority board members be set by the governing body of the municipality, not by the authority board members themselves. With regard to the first point, specifically, that the Municipality Authorities Act expressly authorizes only salaries, not mileage reimbursements, for authority board members, we note that a public official is only entitled to the compensation that he is expressly authorized by statute to receive. See, Cotlar v. Warminster Township, 302 A.2d 859 (Pa. Cmwlth. 1973). It has been held that absent express statutory authority, a public official is not entitled to receive mileage reimbursements. See, Wherry v. Mercer County Commissioners, 49 Pa. D. & C.2d 252 (1969). Certainly, the General Assembly knows how to authorize mileage reimbursements for those who are intended to receive them. See, e.q., 53 P.S. § 65606(a). When, as in the instant matter, a statute expressly authorizes a "salary" for a public official but omits any authorization for mileage reimbursements to the public official, the necessary conclusion is that the General Assembly intended to exclude mileage reimbursements from the authorized payments to such public official. (Cf., Glinka v. Workmen's Compensation Appeal Board, 462 A.2d 909 (Pa. Cmwlth. 1983), applying the maxim of statutory construction, "expressio unius est exclusio alterius "). With regard to the second point, specifically, that the Municipality Authorities Act requires that the salaries of authority board members be set by the governing body of the municipality, not by the authority board members themselves (see, e.q., Delman, Order 1183; Donald, Order 1184; Hines, Order 1185), we conclude that the use by authority board members of a "personnel policy" to circumvent the requirements of the Municipality Authorities Act so as to augment their own compensation would contravene Section 1103(a) of the Ethics Act. You are therefore advised that the Transit Authority Board Members would be prohibited under Section 1103(a) of the Ethics Act from changing the Transit Authority's personnel policy to permit Transit Authority Board Members to receive mileage reimbursements for use of their private automobiles for Transit Authority business. Such action would constitute a use of the authority of their public offices for the private (unauthorized) pecuniary benefit of themselves. 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. IV. CONCLUSION: Members of a county transportation authority ( "Transit Authorityy' ) are public officials subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Given that the Municipality Authorities Act: (1) expressly authorizes only salaries, not mileage reimbursements, for authority board members; and (2) requires that the salaries of authority board members be set by the governing body of the municipality, not by the authority board members themselves, Transit Authority Board Members would be prohibited under Section 1103(a) of the Ethics Act from changing the Transit Authority's personnel policy to permit Transit Authority Board Members to receive mileage reimbursements for use of their private automobiles for Transit Authority business. The propriety of the proposed conduct has only been addressed under the Ethics Act. Blazosek 03 -009 September 29, 2003 Page 5 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. 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