concurring and dissenting.
While I join with other portions of the majority’s opinion, I dissent from Part Four’s finding that the Petitioners violated the Ethics Act1 by authorizing the Township Solicitor to challenge the Auditors’ decision to decrease the annual laborer wage for Supervisors working as laborers.
The Petitioners were Township Supervisors for which they received compensation as set by ordinance. From 1988 to 1994, the Petitioners, as Supervisors, appointed themselves to positions of roadmasters as specifically authorized by Section 514 of the Second Class Township Code, 53 P.S. § 65514. Section 514 provides in relevant part:
The board of township supervisors ... shall employ a superintendent for the entire township or a roadmaster for each district ... The supervisors shall fix the wages to be paid ... to the superintendent or roadmasters and laborers for work on the roads and bridges ... This section shall not prohibit the township supervisors from being employed as superintendents or roadmasters, or as laborers, if physically able to work on and maintain the roads. (Emphasis added).
Where supervisors appoint themselves to positions of roadmasters, it is the responsibility of the Township’s Auditors to set their compensation. 53 P.S. §§ 65515 and 53 P.S. § 65531; Yocabet v. Commonwealth, State Ethics Commission, 109 Pa.Cmwlth. 432, 531 A.2d 536 (1987). In January of 1988, the Township Auditors set a flat annual salary of $5,420 to be paid to the roadmasters and an hourly wage of $8 for roadmasters working as laborers. At their meeting in early 1989, the Township Auditors reduced the hourly *1014wage rate for Supervisors working as laborers from $8 to $5, while retaining the annual roadmaster’s salary at $5,420.
At a special meeting of the Board of Supervisors, the Supervisors unanimously voted to authorize the Township Solicitor to challenge the Auditors’ reduction in the wage rate of Supervisors working as laborers. This appeal was authorized by 53 P.S. § 65553 (Section 553 of the Second Class Township Code), which provides:
The township, or any registered elector or taxpayer thereof on its behalf, or any officer whose account is settled or audited by the township auditors, may appeal from any settlement or audit of the township auditors to the court of common pleas within forty-five days after the settlement has been filed in the court of quarter sessions.
The trial court set the hourly wages for Supervisors working as roadmasters at $11.50 for full-time employees and $8.50 for part-time employees, and ordered the Auditors to institute the new wage rates. After the Auditors instituted the new wage rates pursuant to that order, the Board of Supervisors voted to pursue an appeal of the trial court’s order, once again through the Township Solicitor, on the issue of retroactive pay if the meeting with the Auditors to resolve the issue proved fruitless.
In January of 1994, the State Ethics Commission (SEC) issued investigative complaints against the Petitioners alleging violations of the Ethics Act. Besides the other matters mentioned in the majority’s opinion, the SEC found that the Petitioners violated the Ethics Act by authorizing the Township Solicitor in the statutory appeal from the Auditors’ 1989 award of compensation and in retaining the Township Solicitor in the appeal from the litigation against the Township Auditors.
I disagree with the majority that the Petitioners’ use of the Township Solicitor to pursue their statutory appeal from the Auditors’ report was a violation of Section 3(a) of the Ethics Act of 1978, constituting the use of public office by public officials for financial gain other than compensation provided by law. There would be no doubt if the Supervisors voted to appeal a decision of the Auditors involving others, that would in no way constitute a violation of the Ethics Act because there would not be any potential financial gain on their part if the Township Solicitor was successful. What the majority and the SEC erroneously focus on is the dual role of the Petitioners, as both Supervisors and roadmasters or laborers. Because of that dual role, their vote as members of the Board of Supervisors authorizing the Township, through the Township Solicitor, to appeal the Auditors’ ruling, constituted the use of public office for public gain because, as either road-master or laborer, their salary could be increased. What is missing from that analysis is that this dual role is specifically authorized by the Second Class Township Code (Code).
Section 514 of the Code specifically permits the Board of Supervisors, on behalf of the Township, to appoint Supervisors to serve as roadmasters or laborers. While the SEC may consider that a use of public office for private financial gain, that cannot be a conflict or a violation of the Ethics Act because it is specifically authorized by the Code. Correspondingly, because Section 553 of the Code specifically provides that the Township has the right to appeal the Auditors’ decision as to the rate of pay of road-masters and laborers, that also cannot be considered a violation of the Ethics Act. Even though the litigation was authorized by the individuals who would ultimately benefit, nonetheless, because the holding of the dual office was sanctioned by the Code, there was no conflict when the Board of Supervisors directed the Township Solicitor to take the appeal. Accordingly, I dissent to that portion of the majority’s opinion which holds that the Petitioners’ use of the Township Solicitor, in accordance with their obligations and statutory rights, was a violation of the Ethics Act.
. Act of October 4, 1978, P.L. 883, which was amended and reenacted and is now found at Act of June 26, 1989, P.L. 26, 65 P.S. §§ 401^113.