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HomeMy WebLinkAbout04-566 SchuckmanEarl W. Schuckman Chairman, Board of Supervisors Shrewsbury Township 12341 Susquehanna Trail South Glen Rock, PA 17327 -9067 Re: Conflict; Public Official /Employee; Chairman; Board; Supervisor; Second Class Township; Simultaneous Service; Planning Commission; Compensation Check Signing; Reimbursement; Mileage. Dear Mr. Schuckman: ADVICE OF COUNSEL June 24, 2004 04 -566 This responds to your letter of May 20, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1a. =S. § 1101 et seq., presents any prohibition or restrictions upon a township supervisor co- signing township checks payable to himself, receiving compensation for serving on the township planning commission and receiving reimbursement consisting of mileage for attending meetings or alternatively mileage for all activities other than planning commission or board of supervisors meetings. Facts: As Chairman of the Board of Supervisors, you request an advisory as to the following specific inquiries: 1. Whether you would transgress the Ethics Act if you would sign a check that would be payable to yourself, including a Supervisor paycheck (as opposed to a Township employee paycheck), given that two supervisors and the Treasurer must sign all Township checks; 2. Whether under the Pennsylvania Municipal Planning Code ( "MPC "), you may receive compensation for sitting on the Planning Commission. As to your second question, you state that other supervisors believe that the Township Auditors may set the compensation for supervisors who are on the Planning Commission. You further state: Schuckman, 04 -566 June 24, 2004 Page 2 The problem seems to be with what is an 'elected or appointed officer'. Following in [sic] the referenced section in the MPC. Section 202. Planning Commission. If the governing body of any municipality shall elect to create a planning commission, such commission shall have not less than three nor more than nine members. Except for elected or appointed officers or employees of the municipality, members of the commission may receive compensation in an amount fixed by the governing body. Compensation shall not exceed the rate of compensation authorized to be paid to members of the governing body. Without exception, members of the planning commission may be reimbursed for necessary and reasonable expenses. However, elected or appointed officers or employees of the municipality shall not, by reason of membership thereon, forfeit the right to exercise the powers, perform the duties or receive the compensations of the municipal offices held by them during such membership. Request letter of May 20, 2004; and 3. What would be considered a reasonable expense for which you may seek reimbursement. As to your third question, you state the following two views: (1) all mileage including the miles driven from home to the Township office for all meetings should be reimbursed; or (2) mileage to everything other than planning commission or supervisors meetings at the Township office should be reimbursed. Discussion: It is initially noted that pursuant to Sections 1107 (10) and 1107(11) of the i - 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 Schuckman, 04 -566 June 24, 2004 Page 3 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: § 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). Schuckman, 04 -566 June 24, 2004 Page 4 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, Pavlovic, Opinion 02 -005. 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. With respect to your first question, you would generally have a conflict of interest as to signing Township checks payable to yourself. The action of signing your own checks would constitute a use of authority of office. See, Juliante, Order 809. The use of authority of office would result in a private pecuniary benefit to yourself so that all the elements for a conflict of interest under Section 1103(a) of the Ethics Act would exist. There is an exception to the above general rule involving fixed or predetermined payments as to which there are no disputes. See, Krushinski, Order 168. In such instances, the public official may participate in fapproval /check issuance process. For example, as to your checks as an elected official, the amount of compensation is set forth in the Second Class Township Code (Code) (53 P.S. §65606). Hence, you may co -sign checks payable to you for your compensation as an elected supervisor. As noted above, such is not the case for payments you receive as a town�shi emplo ewe where the payments, which typically depend upon the hours worked may not be fixed but are subject to review. Your second question the issue is whether you may receive compensation for serving on the Planning Commission which was created under the MPC. The question of whether you may receive compensation turns upon whether there is an authorization in law for a supervisor to serve on a planning commission and receive compensation for such service. In this regard, the Code provides in part: § 65403. Supervisors (b) Except as otherwise provided in this act, no supervisor shall at the same time hold any other elective or appointive township office or position. Nothing in this subsection shall prohibit a supervisor from being a member of a township planning commission created under the act of July 31, 1968 (P.L. 805, No. 247), known as the "Pennsylvania Municipalities Planning Code" 53 P.S. §65403(b) Although it is clear under the Code that you may simultaneously serve as a member of a planning commission created under the MPC, it is unclear whether you may receive compensation. The Code states: § 65606. Compensation of supervisors (a) The compensation of supervisors, when employed as roadmasters, laborers, secretary, treasurer, assistant Schuckman, 04 -566 June 24, 2004 Page 5 secretary, assistant treasurer or in any employe capacity not otherwise prohibited by this or any other act, shall be determined by the board of auditors, at an hourly, daily, weekly, semi - monthly or monthly basis, which shall be comparable to compensation paid in the locality for similar services. 53 P.S. §65606(a) There is no specific language in the Code which directs auditors to approve compensation for supervisors who serve on planning commissions. The absence of such specific language might suggest that there is no authorization and hence no right to receive such compensation. However, this issue will remain unresolved until such time as a court of final jurisdiction determines whether supervisors who serve as planning commissioners may receive compensation for holding such positions. As to your third inquiry regarding receiving mileage reimbursement, the Code provides as follows: §65606. Compensation of supervisors (a) The board of supervisors may establish a mileage allowance, under the act of July 20, 1979 (P.L. 156, No. 51), referred to as the Uniform Mileage Fee Law, to be paid to officers and employes for the use of a personal vehicle when required and actually used for authorized township business. No supervisor may receive compensation as an employe for attending a meeting of the board of supervisors. (Emphasis added) Id. There are other Code provisions related to mileage. See, 53 P.S. §§66402(g)(1), 66401(c)(1), 65607(4). The above quoted language seems to suggest that mileage reimbursement entitlement is quite restrictive both as to the individuals as well as the circumstances. However, as noted above, a resolution of such issues will not occur until such time as the courts make a ruling interpreting such provisions. In short, a public official /public employee may only receive such compensation, benefits and other entitlements as provided in law. If so authorized in law, the public official /public employee may receive such benefits consistent with the Ethics Act. Contrariwise, if such pecuniary benefits are not authorized in law, then the receipt of such financial benefits by the public official /public employee through his position would be a use of authority of office to obtain a private pecuniary benefit in contravention of Section 1103(a) of the Ethics Act. Where the determination involves provisions of the laws other than the Ethics Act and where those laws contain provisions which are unclear as to whether there is a legal entitlement to such pecuniary benefits, it will be for the courts to interpret such legal provisions. 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 Chairman of the Shrewsbury Township Board of Supervisors, 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. Under Section 1103(a) of the Ethics Act you would generally have a conflict oT interest as to signing Township checks Schuckman, 04 -566 June 24, 2004 Page 6 payable to yourself. There is an exception to the general rule involving fixed or predetermined payments as to which there are no disputes. In such instances, the public official may participate in the approval /check issuance process. Although under the Second Class Township Code you may simultaneously serve as a member of a planning commission created under the Municipal Planning Code, it is unclear whether you may receive compensation. There is no specific language in the Code which directs auditors to approve compensation for supervisors who serve on planning commissions. The issue remains unresolved until such time as a court of final jurisdiction determines whether supervisors who serve as planning commissioners may receive compensation for holding such positions. As to mileage reimbursement entitlement, the Code is quite restrictive both as to the individuals as well as the circumstances. A resolution of mileage reimbursement entitlement will not occur until such time as the courts make a ruling interpreting such provisions. 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