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Home My WebLink About04-521-CL ConfidentialADVICE OF COUNSEL April 27, 2004 04-521-CL Re: Conflict; Public Official /Employee; Township; Non-Employee Supervisor; PSATS Convention; Reimbursement For Lost Wages; School Teacher; School District; Private Pecuniary Benefit, Clarification of Advice; Confidential Advice, 04 -521. This responds to your letter of March 26, 2004, by which you requested clarification of Confidential Advice, 04 -521. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1: § 1101 et seq., presents any prohibition or restrictions upon a non - employee 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: By letter dated February 17, 2004, you initially sought an advisory from the State Ethics Commission. In response to your request, Confidential Advice, 04 -521 was issued to you on March 17, 2004, which Advice is incorporated herein by reference. You now seek clarification with respect to the propriety of a township supervisor receiving reimbursement for lost wages while attending the annual PSATS convention. You state that Section 66402(g)(3) of the Second Class Township Code, 53 P.S. § 65101 et seq. permits non - employee supervisors to receive such reimbursement. You ask that Confidential Advice, 04 -521 be clarified in light of the foregoing provision. Discussion: It is initially noted that neither in your original request for an advisory nor in your most recent request for clarification have you definitively stated that you are a non - employee supervisor. However, given that you now make reference to a provision in the Second Class Township Code that pertains to supervisors not employed by the township, it shall be assumed for purposes of this clarifying advice that you are in fact a non - employee supervisor. Having established that you are a non - employee supervisor, your specific inquiry shall now be addressed. Confidential Advice 04- 521 -CL April 27, 2004 Page 2 As noted in Confidential Advice, 04 -521, 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. In applying 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. A pecuniary benefit that is authorized in law is not a "private" pecuniary benefit. Conversely, a pecuniary benefit that is not authorized in law is a "private" pecuniary benefit. Wagner, Order No. 1028 at 12; Thompson, Opinion 99 -005, at 3 -4. With regard to your question of whether a non - employee township supervisor may receive reimbursement for lost wages while attending the annual PSATS convention, only general guidance may be given under the submitted facts. Although the State Ethics Commission does not have the statutory jurisdiction to interpret laws other than the Ethics Act, it may in certain instances be necessary to review certain provisions of other laws to the extent that those laws impact upon the Ethics Act. 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 66402 of the Second Class Township Code provides as follows: § 66402. State Association of Township Supervisors authorized (g)(3) The board of supervisors may authorize a supervisor who is not employed by the township to receive total or partial reimbursement for lost wages or salary while attending the annual meeting, provided that sufficient documentation is presented to the board supervisors to justify the reimbursement. 53 P.S. § 66402(g)(3). In your case, you state that in order to attend the PSATS meeting, you would use two personal days of paid leave from your regular employment as a school teacher with the C School District. While it is understood that your loss might be in the nature of a reduction in your personal leave balance, you would not actually lose any wages or salary as a result of attending the PSATS meeting because you would be using paid leave. This is in contrast to an hourly paid employee who would actually lose wages as a result of attending the PSATS meeting. Section 66402(g)(3) states that the non - employee supervisor must lose wages or salary and then obtain total or partial reimbursement with sufficient documentation to justify the reimbursement. Although a literal reading suggests that an actual loss of wages or salary must occur that is supported by documentation (of the loss) to justify reimbursement, such an interpretation must be made by the courts. As noted in Confidential Advice, 04 -521, 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." Confidential Advice 04- 521 -CL April 27, 2004 Page 3 Therefore, until an appropriate judicial forum interprets the relevant portions of the Second Class Township Code, it remains unclear as to whether a non - working township supervisor may receive reimbursement from the township for lost wages as a result of attending a PSATS convention where the supervisor has used paid leave from his regular employment to attend the convention. Until such judicial determination is made, the necessary conclusion is that to the extent the Second Class Township Code would prohibit a non - working township supervisor from receiving reimbursement from the township for lost wages as a result of attending the annual PSATS convention where the supervisor has used paid leave from his regular employment to attend the convention, the Ethics Act would then also prohibit the receipt of such a private pecuniary benefit. To the extent the Second Class Township Code would authorize a non - working township supervisor to receive reimbursement from the township for lost wages as a result of attending the annual PSATS convention where the supervisor has used paid leave from his regular employment to attend the convention, the Ethics Act would then also permit such reimbursement. 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 ( "Township "), ou 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 non - employee township supervisor may receive reimbursement from the township for lost wages as a result of attending the annual PSATS convention where the supervisor has used paid leave from his regular employment to attend the convention. Until such judicial determination is made, the necessary conclusion is that to the extent the Second Class Township Code would prohibit a non - employee township supervisor from receiving reimbursement from the township for lost wages as a result of attending the annual PSATS convention where the supervisor has used paid leave from his regular employment to attend the convention, the Ethics Act would then also prohibit the receipt of such a private pecuniary benefit. To the extent the Second Class Township Code would authorize a non - working township supervisor to receive reimbursement from the township for lost wages as a result of attending the annual PSATS convention where the supervisor has used paid leave from his regular employment to attend the convention, the Ethics Act would then also permit such reimbursement. 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 Confidential Advice 04- 521 -CL April 27, 2004 Page 4 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