HomeMy WebLinkAbout05-516 KendallJonathan Solomon, Esquire
421 East Moody Avenue
New Castle, PA 16105
ADVICE OF COUNSEL
March 14, 2005
05 -516
Re: Conflict; Public Official; Second Class Township; Supervisor; Salary Increase.
Dear Mr. Solomon:
This responds to your letter of February 8, 2005, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon township
supervisors with regard to increasing their salaries as supervisors during their terms of
office.
Facts: As Solicitor to Wilmington Township ( "Township "), Lawrence County,
Pennsylvania, you seek an advisory on behalf of the following three individuals who
constitute the Township Board of Supervisors: Dale Elder, William Allen and Norbert
Kendall (collectively referred to hereinafter as the "Supervisors "). You have submitted
facts, which may be fairly summarized as follows.
The Township's population is under 4,999.
The Supervisors currently receive supervisor pay in the amount of $50 per
meeting, for a total of approximately $700 per year per Supervisor. The Supervisors
also receive employee compensation as roadmasters and laborers. However, your
inquiry does not relate to such duties or compensation as working supervisors.
The Board of Supervisors wishes to increase the compensation for Supervisors
by: (1) adding payment at an hourly rate for services performed in the supervisory
capacity, with total compensation not to exceed $1,875 per year; or (2) in the
alternative, paying an additional $50 per meeting of non - township agencies, such as
DEP, COG, the water company, and the like, with total compensation not to exceed
$1,875 per year.
Based upon the forgoing facts, you pose the following questions:
Solomon, 05 -516
March 14, 2005
Page 2
(1) Whether it is lawful for the Township to increase the Supervisors' compensation
in the manner described above in order to pay them for supervisory work;
(2) Whether it is lawful for the Supervisors to set their compensation by ordinance, or
whether such compensation must be set by the Auditors; and
If the compensation may be increased as described above, whether such
increase would be limited to supervisors entering into the next term of office, or
whether the current Supervisors could receive this additional compensation.
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 requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts.
It is further initially noted that the Commission, in the exercise of its jurisdiction, is
limited to making determinations under the Ethics Act. In making such determinations,
it is necessary at times to review other laws to determine whether a given benefit is
authorized so that the Commission may conclude whether a public official /public
employee is receiving a private pecuniary benefit contrary to the Ethics Act. However, it
is beyond the scope of the Ethics Act and the function of the State Ethics Commission
to make determinations as to other state laws, regulations or Constitutions.
Accordingly, the scope of this advisory shall be limited to providing advice under the
Ethics Act.
(3)
The Supervisors on whose behalf you have inquired are public officials as that
term is defined in the Ethics Act, and hence the Supervisors are subject to the
provisions of the Ethics 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
Solomon, 05 -516
March 14, 2005
Page 3
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.
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, Pavlovic, Opinion 02 -005.
It is administratively noted that Section 65606 the Second Class Township Code
provides in pertinent part:
Solomon, 05 -516
March 14, 2005
Page 4
§ 65606. Compensation of supervisors
(a) Supervisors may receive as compensation an amount
established by ordinance not in excess of the following:
Township Annual Maximum
Population Compensation
not more than 4,999 $1,875
5,000 to 9,999 $2,500
10,000 to 14,999 $3,250
15,000 to 24,999 $4,125
25,000 to 34,999 $4,375
35,000 or more $5,000
Salaries are payable monthly or quarterly for the duties
imposed by this act.... The compensation of supervisors,
when employed as roadmasters, laborers, secretary,
treasurer, assistant 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. . No supervisor may receive
compensation as an employe for attending a meeting of the
board of supervisors. . Any change in salary,
compensation or emoluments of the elected office becomes
effective at the beginning of the next term of the supervisor.
53 P.S. § 65606(a) (Emphasis added).
Section 65606(a) of the Second Class Township Code, 53 P.S. § 65606(a),
provides for supervisor salaries to be payable monthly or quarterly with a maximum
salary of $1,875 for a supervisor in a township with a population of 4,999 or less. 53
P.S. § 65606(a). The same Section clearly provides, on its face, that any change in the
salary, compensation or emoluments of a supervisor becomes effective at the beginning
of the next term. Id. (Cf., Article III, Section 27 of the Pennsylvania Constitution, which
appears to have been interpreted to apply to laws of the General Assembly as opposed
to ordinances of municipal bodies (Baldwin v. Philadelphia, 99 Pa. 164 (1881); McKinley
v. Luzerne Township School District, 383 Pa. 289, 118 A.2d 137 (1955)).)
In response to your first question, you are advised that pursuant to Section
1103(a) of the Ethics Act, the Supervisors would be permitted to enact a salary increase
for supervisors that would comply with the Second Class Township Code, with total
supervisor compensation falling within the annual maximum compensation limit set by
the Second Class Township Code, 53 P.S. § 65606(a). The Ethics Act does not
address particular compensation methods, and the State Ethics Commission does not
have the statutory jurisdiction to determine whether the particular compensation
methods that you have proposed would comply with the Second Class Township Code.
Your second question may not be addressed because it requires an
interpretation of the Second Class Township Code, which is beyond the jurisdiction of
the State Ethics Commission.
With respect to your third question, it is noted that in Paucke, Opinion 02 -002, the
Commission stated:
Section 65606 of the Second Class Township Code,
on its face, prohibits "any change" in supervisor salary/
Solomon, 05 -516
March 14, 2005
Page 5
compensation /emoluments from becoming effective during
the term in which such change occurs. It is clear, without
any need for interpreting Section 65606, that an increase in
the dollar amount of authorized supervisor compensation
would be a "change" which, pursuant to the Ethics Act, could
not be accepted until the following term of the Township
Supervisors. Cf., McCabe, Opinions 95 -001 and 95- 001 -R.
Paucke, Opinion 02 -002 at 3. Accordingly, you are advised that the Supervisors would
not be permitted to accept a supervisor salary increase during their respective terms in
which the salary increase would occur as such would constitute a private pecuniary
benefit contrary to Section 1103(a) of the Ethics Act.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Conclusion: The Wilmington Township ( "Township ") Supervisors ( "Supervisors ") are
public officials subject to the provisions of the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Pursuant to Section 1103(a) of the Ethics Act,
the Supervisors would be permitted to enact a salary increase for supervisors that
would comply with the Second Class Township Code, with total supervisor
compensation falling within the annual maximum compensation limit set by the Second
Class Township Code, 53 P.S. § 65606(a). The Supervisors would not be permitted to
accept a supervisor salary increase during their respective terms in which the salary
increase would occur as such 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