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HomeMy WebLinkAbout04-521 ConfidentialADVICE OF COUNSEL March 17, 2004 04 -521 Re: Conflict; Public Official /Employee; Township; Supervisor; PSATS Convention; Reimbursement For Lost Wages; School Teacher; School District; Private Pecuniary Benefit. This responds to your letter received on February 17, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.O.S. § 1101 et seq., presents any prohibition or restrictions upon a township supervisor with regard to receiving reimbursement from the township for lost wages from his regular employment due to attending an annual conference of the Pennsylvania State Association of Township Supervisors ( "PSATS "). Facts: You are a duly elected Supervisor for A Township, B County. You seek a cadential advisory as to the propriety of receiving reimbursement from A Township for lost wages from your regular employment due to your attendance at a PSATS conference. On [date], A Township adopted Resolution No. [No.], establishing, inter alia, reimbursement for supervisors for lost wages or salaries resulting from attending the annual PSATS conference. You have submitted a copy of Resolution No. [No.], which is incorporated herein by reference. You wish to attend the PSATS conference this year which is scheduled for April 18, 2004 through April 21, 2004. You state that in order to attend the conference, you were required to request two personal days of leave from your regular employment as a school teacher with the C School District. You state that pursuant to the Collective Bargaining Agreement between the C School District and the D, you are entitled to ten sick days and three personal days each school year. If you do not use the personal days during the school calendar year, you are permitted to "bank" these days as sick days. Furthermore, you may accumulate up to thirteen sick days for the 2003 -2004 school year. You may accumulate up to a maximum of sixty -five sick days with the conversion of your unused personal days to sick days beginning September 1, 2002 through August 31, 2007. You have submitted a copy of a letter dated [date] from the Business Manager of the C School District which indicates that you normally work an eight hour day at an Confidential Advice 04 -521 March 17, 2004 Page 2 hourly rate of [dollar amount]. Based upon the Business Manager's letter, you state that your daily rate of pay as a school teacher for the C School District for the 2003 -2004 school year is [dollar amount] per diem. You state that if you attend the PSATS conference, you will receive compensation from the C School District for two personal days; if you do not attend the PSATS conference, you will not be required to use two personal days, which you will then have for future use. You ask whether you may receive reimbursement from A Township in accordance with the reimbursement schedule set forth in Resolution No. [No.]. You state that it is not your intention to "double dip" by receiving reimbursement from A Township for lost wages and receiving compensation from the C School District for two personal days. 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 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 Confidential Advice 04 -521 March 17, 2004 Page 3 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: § 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/ Confidential Advice 04 -521 March 17, 2004 Page 4 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. In the instant matter, the following provision of the Second Class Township Code must be reviewed in order to properly apply the Ethics Act to your inquiry. Section 65607 of the Second Class Township Code provides as follows: § 65607. Duties of supervisors The board of supervisors shall: (4) Authorize attendance at conferences, institutes, schools and conventions. Any supervisor, elected or appointed officer or township employe may if directed by the board of supervisors attend any conference, institute, school or convention dealing with the duties and functions of elected or appointed officers or employes. The expenses for attending the meetings may be paid by the township and are limited to the registration fee, mileage for the use of a personal vehicle or reimbursement of actual transportation expense going to and returning from the meeting plus all other actual expenses that the board of supervisors agrees to pay. Every attendee shall submit to the board of supervisors an itemized account of expenses incurred at the meeting. The board of supervisors may authorize employes to be compensated at their regular employe rate, and auditors to be compensated at the rate of ten dollars ($10) for each hour up to a maximum of five hours per day, during their attendance at the meeting. 53 P.S. § 65607(4). Per the foregoing provision of the Second Class Township Code, the board of supervisors shall authorize township supervisors to attend conferences, institutes, schools, and conventions. The township may pay the "expenses" for attending the meetings, which "expenses" are limited to the registration fee, mileage for use of a personal vehicle, or reimbursement of actual transportation "expense" going to and returning from the meeting, plus all other actual "expenses' that the board of supervisors agrees to pay. Supervisors attending such meeting shall submit to the board of supervisors an itemized account of "expenses incurred" at the meeting. Finally, the board of supervisors may authorize employes to be compensated at their regular employe rate, and auditors to be compensated at the rate of $10 per hour up to a maximum of five hours per day, during their attendance at the meeting. In addressing the question which you have posed, the question arises as to whether the loss of wages is a properly reimbursable "expense" within the context of Section 65607(4). Although there do not appear to be any court cases interpreting Confidential Advice 04 -521 March 17, 2004 Page 5 Section 65607(4) of the Second Class Township Code, a similar issue was addressed in School Director Expenses, 74 Pa. D. & C.2d. 716 (1975). In School Director Expenses, 74 Pa. D. & C.2d. 716 (1975), the Pennsylvania Department of Justice considered whether under Section 516 of the Public School Code of 1949, as amended, 24 P.S. § 5- 516.1, school directors would be entitled to reimbursement for lost wages in instances where they would attend educational conventions. Section 516 provided that school directors could be reimbursed "'for all expenses actually and necessarily incurred in going to, attending and returning from the place of such meeting, including travel, travel insurance, lodging, meals, registration fee and other incidental expenses necessarily incurred, but not exceeding thirty dollars 4$ per day for lodging and meals, necessarily Id., at 716 -717. Construing the terms expenses" and "incurred" according to their common and approved usage, the Department of Justice first determined that according to common usage, a person incurs expenses when he becomes subject to or liable to a laying out or using up of money or other resources. Because school directors would not render themselves subject to a legal obligation to pay out or expend the amount of wages they would have received had they not attended the convention, the Department of Justice found that such lost wages would not fall within the definition of an "expense incurred." In addition, because the term "lost wages" does not belong to the same general kind or class as the terms "travel, travel insurance, lodging, meals, registration fees and other incidental expenses," and because the Public School Code does not specifically provide for the reimbursement of lost wages, the Department of Justice determined that school directors could not, under Section 516 of the Public School Code, receive reimbursement for wages lost as a result of attending an educational convention. Given that Section 65607(4) of the Second Class Township Code contains language similar to the language contained in Section 5 -516.1 of the Public School Code in that Section 65607(4) also authorizes reimbursement of "expenses incurred" such as transportation expenses, registration fees, and mileage for the use of a personal vehicle, and does not specifically provide for the reimbursement of lost wages, based upon School Director Expenses, 74 Pa. D. & C.2d. 716 (1975), it would appear that a township supervisor may not, under Section 65607(4) of the Second Class Township Code, receive reimbursement for lost wages as a result of attending a PSATS convention. Another question relates to the provision within Section 65607(4) which states that the "board of supervisors may authorize employes to be compensated at their regular employe rate." It would seem that the term "employes" refers strictly to second class township employees, as opposed to all other employees, based upon a reading of the entire section and a consideration of legislative intent. However, as noted above, the State Ethics Commission's jurisdiction is limited to the Ethics Act and only peripherally involves other laws to determine whether a particular pecuniary benefit is not authorized, or "private." Therefore, until an appropriate judicial forum interprets the relevant portions of the Second Class Township Code, it remains unclear as to whether a township supervisor may receive reimbursement from the township for lost wages as a result of attending a PSATS convention, and whether the reference to "employes" found in Section 65607(4) relates strictly to second class township employees. Until such judicial determination is made, the necessary conclusion is that to the extent the Second Class Township Code would prohibit a township supervisor from receiving reimbursement from the township for lost wages as a result of attending a PSATS convention, the Ethics Act would then also prohibit the receipt of such a private pecuniary benefit. Finally, it is parenthetically noted that if a court would determine that the Second Class Township Code prohibits a township supervisor from receiving reimbursement from the township for lost wages as a result of attending a PSATS convention, Resolution No. [No.] would be inconsistent with the Second Class Township Code and Confidential Advice 04 -521 March 17, 2004 Page 6 would therefore be invalid. See, Philadelphia Presbytery Homes, Inc. v. Abington Board of Commissioners, 440 Pa. 269 A.2d 871 (1970) (wherein the Supreme Court of Pennsylvania held that a provision in a local ordinance was invalid because it did not comport with the applicable enabling statute. The Court relied upon the basic principle of law that if a statute and an ordinance are inconsistent, or, if the statute can fairly be regarded as intended to supplant the ordinance, the latter must give way and the statute only have effect given to it). 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 A Township, 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 Until an appropriate judicial forum interprets the relevant portions of the Second Class Township Code, it remains unclear as to whether a township supervisor may receive reimbursement from the township for lost wages as a result of attending a PSATS convention, and whether the reference to "employes" found in Section 65607(4) relates strictly to second class township employees. Until such judicial determination is made, the necessary conclusion is that to the extent the Second Class Township Code would prohibit a township supervisor from receiving reimbursement from the township for lost wages as a result of attending a PSATS convention, the Ethics Act would then also prohibit the receipt of such 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