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HomeMy WebLinkAbout03-614 SchnurHarold F. Schnur Summit Township Supervisor 794 Herman Road Butler, PA 16002 Dear Mr. Schnur: ADVICE OF COUNSEL December 30, 2003 03 -614 Re: Conflict; Public Official /Employee; Township; Supervisor; Salary; Benefits; Monies From General Fund To Pay For Non - covered Medical Expenses. This responds to your letter of November 24, 2003, 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 township supervisor as to receiving a monetary payment from the township's general fund to pay for medical expenses not covered by the township medical insurance policy. Facts: You are a Supervisor for Summit Township ("Township"), Butler County, having taken office in 2002. You state that at the time you took office, you refused your salary and benefits for the following two reasons: (1) you wanted the Township to move forward with the purchase of land and equipment; and (2) you were not sure whether you had any real positive workable ideas to contribute. At the Township re- organizational meeting in January 2003, when the budget was made for the year, you stated that you might again refuse your salary and benefits for 2003. However, you asked that your salary and benefits be kept in the budget in case you needed the money during the 2003 calendar year. Due to personal reasons, in October 2003, you asked for your salary for the entire year as well as your benefits, however, the Township Secretary/Treasurer and other Board Members refused your request. You state that after much debate at a public Township meeting, and with the advice of the Township Solicitor, you were permitted a salary without benefits. You state that the benefits consist of $1,500, which is taken out of the general fund to pay for other medical expenses not covered by the Township medical insurance policy. You further state that ou did not request the Township medical insurance policy, but only the $1,500 benefit. Schnur, 03 -614 December 30, 2003 Page 2 You state that the Solicitor was unsure whether you could legally receive benefits and suggested that you contact the State Ethics Commission. You seek an advisory as to the propriety under the Ethics Act of receiving benefits of $1,500 from the Township's general fund. 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 Summit Township, 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 Schnur, 03 -614 December 30, 2003 Page 3 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 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. Although the State Ethics Commission does not have the statutory jurisdiction to interpret laws other than the Ethics Act, such other laws become relevant when it is necessary to determine whether a public official /employee may receive a pecuniary benefit under the Ethics Act. In such cases, other laws must be considered to determine whether the pecuniary benefit is permitted under the Ethics Act as authorized in law or is prohibited as a private pecuniary benefit without authorization in law. A financial gain to a public official /public employee that is other than compensation provided for by law is a private pecuniary benefit. Thompson, Opinion 99 -005, at 3 -4. Schnur, 03 -614 December 30, 2003 Page 4 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 $1,875 5,000 to 9,999 $2,500 10,000 to 14,999 $3,250 15,000 to 24,999 $4,125 25,000 to 34,999 $4,375 35,000 or more $5,000 Salaries are payable monthly or quarterly for the duties imposed by this act....Any change in salary, compensation or emoluments of the elected office becomes effective at the beginning of the next term of the supervisor. A decision by the township to pay, in whole or in part, to include supervisors not employed by the township in insurance plans, as authorized in subsection (c), shall not be implemented with regard to any nonemployee supervisor until the beginning of the next term of that supervisor. (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(a), (c). Per the foregoing provisions of the Second Class Township Code, township supervisors are entitled to compensation based upon the township's population, and are eligible for township -paid group life, health, hospitalization, medical service, and accident insurance coverage. 53 P.S. § 65606(a), (c). Therefore, to the extent that the Township Board of Supervisors has acted to authorize Township -paid group life, health, hospitalization, medical service, and accident coverage for you, as a Township Supervisor, you may receive such coverage at the Township's expense without transgressing Section 1103(a) of the Ethics Act. Under the submitted facts, the benefits offered to you consist of $1,500 taken out of the Township's general fund to pay for medical expenses not covered by the Township medical insurance policy. In that there does not appear to be a specific Schnur, 03 -614 December 30, 2003 Page 5 authorization in law permitting a monetary payment to a township supervisor from the Township's general fund for the payment of non - covered medical expenses, your receipt of the $1,500 benefit would constitute a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. The foregoing conclusion is consistent with Thompson, Opinion 99 -005, wherein the full Commission addressed the issue of whether county commissioners could, under the Ethics Act, forgo county paid health insurance benefits in exchange for a whole or partial monetary payment in lieu of such benefits. The Commission stated that assuming that government -paid benefits are lawfully available to a given public official/ public employee, the propriety of such individual foregoing the benefits in return for some monetary payment depends upon whether there is a specific authorization in law permitting a monetary payment in lieu of benefits. Thompson, supra, at 5. If benefits are authorized in law without a specific option to forego the benefits for a monetary payment, then the public official /public employee may not obtain such a pecuniary benefit. Id. See also, Bucho, Advice of Counsel, 02 -626. 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 Summit 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. Section 1103(a) of the Ethics Act would prohibit you from receiving a $1,500 payment from the Township's general fund to pay for medical expenses not covered by the Township's medical insurance plan because such payment does not appear to be authorized in law, and thus would constitute a private pecuniary benefit. 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