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HomeMy WebLinkAbout04-569 ConfidentialADVICE OF COUNSEL July 9, 2004 04 -569 Re: Conflict; Public Official; Township; Council Member; Group Health Insurance Through Township; Payment at Own Expense. This responds to your letters of [date], and [date], by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1ra.C.S. § 1101 et seq., presents any prohibition or restrictions upon a township council member as to obtaining a group health insurance policy through the township that would provide coverage when: (1) on municipal business or performing official duties; and (2) at all other times, where the council member would pay or reimburse the township for his proportionate share of the premium. Facts: You are a Member of the Council of A Township, having been elected in mon and year]. Shortly after taking the oath of office in [month and year], you were appointed B. You state that the duties of your office are set forth in the A Township Charter. You have submitted a copy of the Charter, which is incorporated herein by reference. You are interested in obtaining a group health insurance policy through the Township that would provide coverage when: (1) on municipal business or performing official duties; and (2) at all other times. You state that you would pay or reimburse the Township for your proportionate share of the premium (i.e. the entire premium differential between the health insurance provided to you by the Township covering you when on municipal business and performing your official duties, and the health insurance covering you at all other times). It is administratively noted that [Article Number and Section Number] of the A Township Charter provides as follows: C. [legal citation]. You ask whether you may obtain such insurance coverage under the Ethics Act. Confidential Advice 04 -569 July 9, 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. §§ 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 Council Member and B for the 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 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: Confidential Advice 04 -569 July 9, 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, 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. 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 Township's Charter must be reviewed in order to properly apply the Ethics Act to your inquiry. Confidential Advice 04 -569 July 9, 2004 Page 4 [Article Number and Section Number] of the Charter quoted above provides that [quote]. [legal citation]. Per the foregoing provision of the Township's Charter, Council Members are eligible for Township -paid health insurance coverage [quote]. [legal citation]. Therefore, to the extent that the Township Council has acted to authorize Township - paid health insurance coverage for you, as a Township Council Member, you may receive such coverage at the Township's expense when you are on Township business or are performing your official duties without transgressing Section 1103(a) of the Ethics Act. As for coverage "at all other times," you have proposed to pay, at your own expense or through reimbursement to the Township, your proportionate share of the premium. It is noted that the Commission has considered the issue of participation by public officials in municipal health insurance group plans at their own expense and has determined that such participation does not present a conflict under the Ethics Act as long as the public official does not use the authority of office in obtaining his own coverage in contravention of the Ethics Act. See, Domalakes, Opinion 85 -010; Keiter, Opinion 90 -004; Dawson, Opinion 97 -003. However, the foregoing rulings are distinguishable in that the public officials /public employees who were seeking to participate in the municipal- sponsored insurance plans were seeking the same unqualified coverage that was available to the other eligible participants. In the instant matter, you are seeking additional coverage, over and beyond that which is authorized in the Charter. Because you as a Council Member may not, under any circumstances, obtain health insurance through the Township that provides coverage "at all other times," your receipt of such a benefit of the insurance at the lower group rate through the Township, even at your own expense, would constitute a use of authority of office to obtain a private pecuniary benefit contrary to Section 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. Conclusion: As a Council Member and B for A 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 sew. To the extent that the Township Council has acted to authorize Township -paid h insurance coverage for you, as a Township Council Member, you may receive such coverage at the Township's expense when you are on Township business or are performing your official duties without transgressing Section 1103(a) of the Ethics Act. You may not obtain health insurance through the Township that provides coverage "at all other times" because your receipt of such a benefit of the insurance at the lower group rate through the Township, even at your own expense, would constitute a use of authority of office to obtain 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. Confidential Advice 04 -569 July 9, 2004 Page 5 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