The URL can be used to link to this page

Home My WebLink About07-522 GreenJeffrey L. Rehmeyer, 11, Esquire Glenn J. Smith, Esquire CGA Law Firm 135 North George Street York, PA 17401 -1282 Dear Counsel: ADVICE OF COUNSEL April 16, 2007 07 -522 This responds to your letters dated March 9, 2007, and April 12, 2007, by which you requested an advisory from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would present any prohibitions or restrictions upon a borough mayor with regard to: (1) electing to receive payments for performing marriage ceremonies in lieu of a salary fixed by borough ordinance, where such payments would be in excess of the mayor's reasonable and necessary actual expenses incurred for performing the marriage ceremonies; and (2) making such an election retroactively. Facts: You request an advisory on behalf of Robert Green ( "Green "), Mayor of Jefferson Borough ( "Borough "). Factually, Green has continuously served as Borough Mayor from 1994 to the present. Green's current term of office began in January of 2006. Each term of office is four years in length. Since taking office in 1994, Green has been paid a salary as fixed by Borough ordinance. In his official capacity as Borough Mayor, Green performs marriage ceremonies. You note that Green was the subject of a recent adjudication by the State Ethics Commission, specifically, Green, Order No. 1424. Administrative notice is taken of Green, Order No. 1424, which approved a Consent Agreement submitted by Green and the Investigative Division of the Commission. The approved Consent Agreement resulted in findings of unintentional violations by Green of Section 1103(a) of the Ethics Act (pertaining to conflicts of interest) and Section 1103(d) of the Ethics Act (pertaining to acceptance of honoraria), relative to Green's acceptance of compensation from the Borough as provided by ordinance and payments from couples for whom Green performed marriage ceremonies. The following material quoted from the Green Order is useful background information for addressing your present inquiry: Rehmeyer & Smith /Green, 07 -522 April 16, 2007 Page 2 Respondent Green has served as Mayor of Jefferson Borough ( "Borough "), York County, from January of 1994 to the present. In his official capacity as Borough Mayor, Green is authorized under Pennsylvania law to perform marriage ceremonies. See, 23 Pa.C.S. § 1503(a)(5). Green is paid for this duty, as well as for his other duties as Mayor, via the annual compensation he receives pursuant to Section 1025 of the Borough Code. See, 53 P.S. § 46025. Based upon the Borough's population, which is less than 5,000, Green's compensation is statutorily limited such that it may not exceed a maximum of $2,500 per year. Id. In 2001, 2002, 2004, and 2005, Green received compensation from the Borough in the amount of $1,500 per year. In 2003, Green received compensation from the Borough in the amount of $1,375. The Borough Code provides that any salary paid to a mayor pursuant to an ordinance shall be in lieu of all costs and fees collected by the mayor and that all costs and fees collected by the mayor shall be turned into the borough treasury. 53 P.S. § 46026. Additionally, a borough mayor is subject to the following statutory duty: § 46029. Duties of mayor It shall be the duty of the mayor: (3) To keep correct accounts of all moneys received by him, to render to the council at least once a month an itemized statement of all such moneys so received since the last such statement, with the date at which and the purpose for which and the names of the persons from whom the same was received, and to pay all such moneys into the borough treasury, ... . 53 P.S. § 46029(3). Since September 1, 1996, Green has performed marriages in his official capacity as Borough Mayor. Green has promoted himself as being the "Marrying Mayor of Jefferson." Green informs inquiring couples that there is no set charge /fee for performing the marriage ceremony. Green advises inquiring couples that they may donate an amount they are comfortable in giving, but that they are not required to do so. Green has received cash and check donations in amounts ranging from $10 to $300 for performing marriage ceremonies. Green has informed those couples making donations that he will use the money to cover his expenses and the remainder will be donated to charity. From 2001 through 2005, Green performed 1090 wedding ceremonies. During that same time period, Green received payments totaling $60,078 for performing wedding ceremonies. Green's business records reflect he reimbursed himself in the total amount of $15,980.12 for miles traveled for performing marriage ceremonies from 2001 through 2005. From 2001 through 2005, monies collected by Green for performing wedding ceremonies were not turned into the Borough treasury. Some of the funds Green received for performing wedding ceremonies were deposited into a personal bank account controlled by Green and his wife. Rehmeyer & Smith /Green, 07 -522 April 16, 2007 Page 3 Green has also used this account to deposit funds not related to payments /donations received from newlyweds. . During the time period of 2001 through 2005, the difference between the total amount Green received for performing wedding ceremonies ($60,078) and the portion of the claimed expenses for which Green as Mayor could have been reimbursed by the Borough if the monies had been handled by the Borough ($34,395) was $25,683. Green, Order No. 1424, at 30 -31. Based upon the Consent Agreement submitted by Green and the Investigative Division, the Commission determined that: (1) Green unintentionally violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to his acceptance of money for performing wedding ceremonies from 2001 through 2005, which payments were beyond the compensation provided by law that Green was entitled to receive; and (2) Green unintentionally violated Section 1103(d) of the Ethics Act, 65 Pa.C.S. § 1103(d), when he accepted honoraria for performing wedding ceremonies as Mayor from 2001 through 2005, which fees were beyond the compensation provided by law that Green was entitled to receive. Per the agreement of the parties, Green was directed to make payment in the amount of $25,683 to Jefferson Borough in settlement of the matter. You state that since January of 2006, any monies obtained from Green's performance of marriage ceremonies have been deposited into a "marriage fund" that is maintained and controlled by the Borough. You reference the following provision of the Borough Code: § 46026. Salaried mayor not to receive fees Any salary paid pursuant to an ordinance shall be in lieu of all costs and fees allowed a mayor. Costs and fees shall be taxed and collected by the mayor and turned into the borough treasury. Any mayor, upon assuming office for any elective or appointive term and at any time no sooner than two years thereafter, shall be authorized to elect to be paid by the fees and costs pertaining to his office or by the salary fixed by ordinance for his office, and such mayor shall thereupon receive as his compensation either the fees and costs, or the fixed salary, as elected by him. 53 P.S. § 46026. You state that pursuant to the above provision of the Borough Code, a mayor is prohibited from collecting both a salary and fees and costs, but that a mayor may receive fees and costs in lieu of a salary fixed by ordinance. You assert that Mayor Green may elect to receive fees and costs pertaining to his office and that such fees and costs may include monies received from presiding over marriage ceremonies. You state that Borough Council has acknowledged and agreed that the monies obtained from Green's performance of wedding ceremonies are solely the result of Green's efforts, and that because of Green's efforts, he should receive those funds upon electing to receive fees and costs in lieu of a salary fixed by ordinance. You submit two potential scenarios for consideration. Rehmeyer & Smith /Green, 07 -522 April 16, 2007 Page 4 Under the first scenario, a Borough ordinance would set Green's form of compensation as fees and costs retroactive to 2001. You note that 2001 would be more than two years after Green first assumed office. Under this scenario, the Borough would provide any monies in the marriage fund to Green, and Green would return to the Borough any salary that he received for the time in question. You assert that this would ensure that Green would receive only fees and costs and not salary for the time in question. Under the second scenario, Green would elect to receive fees and costs as his form of compensation beginning in January 2008, which would be two years into his current term of office. Under this scenario, Green would no longer receive a salary, and any monies remaining in the marriage fund as of January 2008 would then be utilized at the Borough's discretion. You request an advisory as to whether Green's proposed conduct under the above two scenarios would be permitted under the Ethics Act. 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. As Borough Mayor, Green is a public official as that term is defined in the Ethics Act, and hence he is 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 pertaining to conflicts of interest 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. Rehmeyer & Smith /Green, 07 -522 April 16, 2007 Page 5 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee 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. Section 1103(d) of the Ethics Act provides that no public official shall accept an honorarium: 65 Pa.C.S. § 1103(d). "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. § 1103. Restricted activities. (d) Honorarium. - -No public official or public employee shall accept an honorarium. The Ethics Act defines the term "honorarium" and the related term "de minimis economic impact" as follows: § 1102. Definitions "Honorarium." Payment made in recognition of published works, appearances, speeches and presentations and which is not intended as consideration for the value of such services which are nonpublic occupational or professional in nature. The term does not include tokens presented or provided which are of de minimis economic impact. "De minimis economic impact." An economic consequence which has an insignificant effect. 65 Pa.C.S. § 1102. In Green, Order No. 1424, the State Ethics Commission determined that payments in excess of expenses that were received by Green for performing marriage ceremonies constituted unauthorized compensation contrary to Section 1103(a) and prohibited honoraria contrary to Section 1103(d). However, based upon the questions that you have submitted, it would appear that you are focusing solely upon Section 1103(a) of the Ethics Act without considering Section 1103(d). You are advised as follows. Section 1103(d) of the Ethics Act would prohibit Green from receiving payments for performing marriage ceremonies in his capacity as Borough Mayor to the extent such payments would exceed Green's reasonable and necessary actual expenses incurred for performing such ceremonies. Reimbursements to Green of reasonable and necessary actual expenses incurred in performing marriage ceremonies would not constitute honoraria because they would merely make Green whole as to expenses. Cf., Moore, 04 -004; Confidential Opinion, 97 -012. However, where payments to Green for performing marriage ceremonies would exceed Green's reasonable and necessary Rehmeyer & Smith /Green, 07 -522 April 16, 2007 Page 6 actual expenses, such payments would constitute honoraria prohibited by Section 1103(d) of the Ethics Act. In Green, Order No. 1424, the Commission expressly stated: In applying the statutory definition of "honorarium" to the payments in question, we conclude that the payments to Green for performing marriage ceremonies were payments made in recognition of appearances, speeches and /or presentations by Green made in his official capacity as Mayor. We note that the statutory definition of the term `honorarium" excludes "tokens presented or provided which are of de minimis economic impact." 65 Pa.C.S. § 1102. Factually, the parties have stipulated that from 2001 through 2005, Green received payments totaling $60,078 for performing wedding ceremonies. The individual payments, ranging from $10 to $300, were not large. However, given the significance of the payments as a whole; the fact that if Green had turned these monies over to the Borough treasury as he was required to do, the Borough's treasury would have been enriched by $25,683 (after expenses) (cf., Keller, supra); and the fact that the parties are in agreement that an unintentional violation of Section 1103(d) would be appropriate as part of an overall settlement of this case, we hold that an unintentional violation of Section 1103(d) of the Ethics Act occurred when Green accepted honoraria for performing wedding ceremonies as Mayor, which fees were beyond the compensation provided by law. Green, Order No. 1424 at 33. Due to the significant economic impact of the payments Green had received for performing marriage ceremonies, the Commission did not reach the question of whether an occasional, small monetary payment for performing a marriage ceremony could ever be considered to fall within the exception to the definition of "honorarium' as a token having a de minimis economic impact. However, it is parenthetically noted that because the Ethics Act, Commission Regulations, and Statutory Construction Act (1 Pa.C.S. § 1991) do not define the term "token," the term would be construed according to its common and approved usage. 1 Pa.C.S. § 1903(a). The common and approved usage of the term "token," used in this context, would be "souvenir, keepsake" (Merriam - Webster Online Dictionary), "[a] keepsake or souvenir" (The American Heritage Dictionary of the English Language, Fourth Edition (2000) (online)), and would not appear to include monetary payments. Based upon the above conclusion that Section 1103(d) of the Ethics Act would prohibit Green from receiving payments for performing marriage ceremonies in his capacity as Borough Mayor to the extent such payments would exceed Green's reasonable and necessary actual expenses for performing such ceremonies, the questions that you have posed are largely academic. Pursuant to Section 1103(d) of the Ethics Act, Green would be prohibited from receiving such payments regardless of any election he might make as to compensation. To the extent this would result in a conflict between the Ethics Act and the Borough Code, the Ethics Act would prevail: § 1112. Conflict of law Except as otherwise provided in Chapter 13 (relating to lobby regulation and disclosure), if the provisions of this Rehmeyer & Smith /Green, 07 -522 April 16, 2007 Page 7 Act. chapter conflict with any other statute, ordinance, regulation or rule, the provisions of this chapter shall control. 65 Pa.C.S. § 1112. In light of the above, the only aspect of your inquiry requiring further review is whether Section 1103(a) of the Ethics Act (pertaining to conflicts of interest) would prohibit Green from receiving reimbursements for reasonable and necessary actual expenses incurred in performing marriage ceremonies. You are advised that Section 1103(a) of the Ethics Act would not prohibit Green from receiving reimbursements for reasonable and necessary actual expenses incurred in performing marriage ceremonies for the same reason noted above as to Section 1103(d)- -such reimbursements would merely make Green whole as to expenses. See, oore, Opinion 04 -004, supra; Confidential Opinion, 97 -012, supra. Based upon the conclusions set forth above, there is no need to address your questions as to whether Green's election between a salary provided by Borough ordinance and fees and costs could be made retroactively, and whether the Borough Code phraseology, "upon assuming office for any elective or appointive term and at any time no sooner than two years thereafter" would permit Green to elect fees and costs in lieu of a salary retroactive to 2001. It is noted, however, that when a provision of the Borough Code would be subject to multiple interpretations, the State Ethics Commission would not have the statutory jurisdiction to interpret it. The propriety of the proposed conduct has only been addressed under the Ethics Conclusion: As Mayor of Jefferson Borough, Robert Green ( "Green ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Section 1103(d) of the Ethics Act would prohibit Green from receiving payments for performing marriage ceremonies as Borough Mayor to the extent such payments would exceed Green's reasonable and necessary actual expenses incurred for performing such ceremonies. Neither Section 1103(a) nor Section 1103(d) of the Ethics Act would prohibit Green from receiving reimbursement for reasonable and necessary actual expenses incurred in performing marriage ceremonies. 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 requester 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 Rehmeyer & Smith /Green, 07 -522 April 16, 2007 Page 8 file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel