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HomeMy WebLinkAbout04-515 DonelsonJames R. Donelson Supervisor, Part -time Roadworker East Wheatfield Township 11560 Rt. 56 Hwy E. Armagh, PA 15920 Re: Conflict; Public Official /Employee; Township; Supervisor; Part -time Township Employee; Compensation for Performing Work Not Approved By Auditors. Dear Mr. Donelson: ADVICE OF COUNSEL February 24, 2004 04 -515 This responds to your letter of January 20, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.GS. § 1101 et sej. presents any prohibition or restrictions upon a township supervisor who is a part -time township employee as to receiving part-time wages for performing work that has not been approved by the township board of auditors. Facts: You are a Supervisor for East Wheatfield Township ( "Township "), Indiana Cuny. You are also a part-time Township employee. The Township Auditors approved the wages for supervisors employed as Secretary /Treasurer, roadmaster, roadworker with a CDL, and roadworker without a CDL. You state that Township employees work on building maintenance and receive wages as roadmaster or roadworker with or without a CDL. The Township will be relocating to two new buildings which it will soon purchase. You ask whether as a part -time Township employee, you may work with the approval of the Board of Supervisors and the Roadmaster and receive part -time wages for preparing the old office and garage for sale, helping to move into the new office and garage, painting, doing small wiring jobs, and performing any other work as directed by the Roadmaster. You further ask whether you may be paid as a part -time Township employee for working with outside contractors to ensure that work is performed correctly at the new building. You note that such work will be performed under the direction of the Roadmaster who is not a supervisor. Donelson, 04 -515 February 24, 2004 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1'107(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 Township Supervisor, 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 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: Donelson, 04 -515 February 24, 2004 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). 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. However, a pecuniary benefit which is authorized in law is not a "private" pecuniary benefit. Conversely, a pecuniary benefit which is not authorized in law is a private" pecuniary benefit. Wagner, Order No. 1028 at 12. Based upon the facts which you have submitted, the Township Auditors have only approved wages for supervisors employed as Secretary/Treasurer, roadmaster, roadworker with a CDL, and roadworker without a CDL. Given that you have not been appointed to be employed in any capacity other than that which relates to roadwork, and given that it appears that the scope of proposed duties have not been approved for compensation by the Board of Auditors, any compensation that you as a part -time Township employee would receive for performing such duties would not be authorized in law and would constitute a private pecuniary benefit contrary to Section 1103(a) of the Donelson, 04 -515 February 24, 2004 Page 4 Ethics Act. This conclusion is consistent with Hessinger, Order 931; Wasiela, Order 932; affirmed in part, RH & TW v. State Ethics Commission, 673 A.2d 1004 (Pa. Commw. 1996), wherein the Commonwealth Court affirmed the Commission's Orders which found that Hessinger and Wasiela, two township supervisors who were also employed as roadmasters and laborers, violated the Ethics Act by, inter alia, receiving hourly wages for work included within the annual roadmaster salary, receiving compensation at hourly rates for attending PSATS conventions, and receiving hourly wages for performing supervisor duties. Commonwealth Court found that the supervisors in these instances had used the authority of their office to obtain financial gains other than compensation provided by law in violation of Section 3(a)/1103(a) 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. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a Supervisor for East Wheatfield 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. You may not, as a part -time Township employee, receive compensation for the performance of duties that have not been approved for compensation by the Board of Auditors. Any compensation that you as a part -time Township employee would receive for performing such duties would not be authorized in law and would constitute a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. 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