White Deer Township v. Napp

Chief Justice CASTILLE,

dissenting.

I respectfully dissent.

“It is a well and wisely established principle of public policy in Pennsylvania that a public official may not use his official power to further his own interests.” Consumers Educ. & Protective Ass’n [CEPA] v. Schwartz, 495 Pa. 10, 432 A.2d 173, 177 (1981); Eways v. Reading Parking Auth., 385 Pa. 592, 124 A.2d 92, 97 (1956); Meixell v. Borough Council of Borough of Hellertown, 370 Pa. 420, 88 A.2d 594, 594 (1952);and Genkinger v. City of New Castle, 368 Pa. 547, 84 A.2d 303, 305 (1951) (emphasis omitted). Indeed, the principle is at least nearly a century old,1 and it is enshrined in a provision of our Constitution, see Pa. Const, art. Ill, § 13 (requiring every member of General Assembly to disclose any “personal or private interest in any measure or bill proposed or pending ... to the House of which he is a member” and prohibiting him from voting thereon). Pursuant to this long*596standing prohibition of public servant self-dealing, state legislators and municipal council members alike are “disqualified from voting in proceedings involving [their] personal or pecuniary interests].” Commonwealth ex rel. McCreary v. Major, 343 Pa. 355, 22 A.2d 686, 689 (1941); Commonwealth ex rel. Whitehouse v. Raudenbush, 249 Pa. 86, 94 A. 555, 555 (1913); accord McAdoo Borough v. Pa. Labor Relations Bd., 506 Pa. 422, 485 A.2d 761, 766 (1984); CEPA, 432 A.2d at 176-77; Meixell, 88 A.2d at 594; Genkinger, 84 A.2d at 306; Reckner v. Sch. Dist. of German Twp., 341 Pa. 375, 19 A.2d 402, 403 (1941). Indeed, “[i]t is against public policy for a representative of a municipality to vote in its legislative body on any matter which affects him individually.” CEPA, 432 A.2d at 176; McCreary, 22 A.2d at 689; Whitehouse, 94 A. at 555. “[T]he prohibition is so strictly enforced that if a measure is passed by the vote of one or more persons who have a direct private interest therein, no matter how beneficial the ordinance may be, it is void.” Genkinger, 84 A.2d at 306; accord CEPA 432 A.2d at 177; Reckner, 19 A.2d at 403.

As this Court has consistently explained, the reasons for the prohibition are “obvious — a man cannot serve two masters at the same time, and the public interest must not be jeopardized by the acts of a public official who has a direct pecuniary or personal or private interest which is or may be in conflict with the public interest.” Eways, 124 A.2d at 98; Genkinger, 84 A.2d at 306 (emphasis omitted); accord Whitehouse, 94 A. at 555. The councilman “is a trustee for the municipality.” CEPA, 432 A.2d at 176-77; Meixell, 88 A.2d at 595; McCreary, 22 A.2d at 689; Reckner, 19 A.2d at 403; Whitehouse, 94 A. at 555. As the beneficiary of the trust, the municipality “has the right to [the councilman’s] best judgment in everything that appertains to [municipal] business or welfare, unaffected and unprejudiced by anything which might inure to [the councilman’s] own interest as an individual.” Reckner, 19 A.2d at 403; Whitehouse, 94 A. at 555.

Given the longstanding, comprehensive, and oft-invoked vitality of the prohibition of public servant self-dealing, we must presume that the General Assembly is cognizant of the princi*597pie when enacting legislation. See McCreary, 22 A.2d at 690. Of course, the General Assembly “has the inherent power to declare the public policy of the Commonwealth,” and therefore may “overthrow [even] such a wholesome and salutary rule of the common law as that precluding a public servant from simultaneously representing both himself and his constituents.” CEPA, 432 A.2d at 177 (quoting McCreary, 22 A.2d at 689 (quoting Reckner, 19 A.2d at 403)). Nevertheless, in order to find a legislative derogation from the salutary prohibition of public servant self-dealing, we must find an “explicit direction” on the part of the General Assembly. Id. “[U]nless the intention is clear, the power will be denied, because of its exceptional and extraordinary character.” CEPA, 432 A.2d at 177 (quoting McCreary, 22 A.2d at 689). For the same reason, even if we find such explicit direction and therefore recognize the exceptional power, we uphold an act of public servants affecting their own personal or pecuniary interests only after: (1) strictly construing the power; and (2) ensuring that the public servants strictly complied with the power. CEPA, 432 A.2d at 178; Genkinger, 84 A.2d at 306.

Instantly, the Majority Opinion sets forth a thorough and plausible analysis explaining why “it is not clear from the statute what the term compensation includes” (Majority Op. at 588, 985 A.2d at 761), and appellants concede that the statute is ambiguous in this respect (see Appellants’ Brief at 16, 20). It may well be that this Court “cannot say with certainty that compensation includes or excludes the post-retirement benefit provided by the Ordinance.” Majority Op. at 588, 985 A.2d at 761; see also id. at 22 (noting that Second Class Township Code does not define “compensation”). In other words, the General Assembly has not provided “explicit direction” on the question. Nevertheless, despite acknowledging that the existence of appellants’ self-interest requires strict construction here (see id. at 19), the Majority fails to strictly construe the statute but, instead, proceeds to external sources, examining the legislative history of the relevant provisions of the Second Class Township Code and the treatment of the term “compensation” in case law. It is here that I part ways with the *598Majority, for strictly construing the compensation power should require us to find that the Code does not explicitly include the post-retirement benefit provided by the Ordinance.

As stated in Fairview Township v. Fairview Township Police Association, 795 A.2d 463 (Pa.Cmwlth.2002), aff'd, per curiam, 576 Pa. 226, 839 A.2d 183 (2003), upon which appellants rely: “[Wjhen a person undertakes employment, there is usually a trade-off between present compensation and deferred compensation that is activated at retirement. The employe[e] agrees to accept less during his active employment in exchange for benefits during his retirement.” Id. at 470 (internal quotation marks omitted). Thus, post-retirement medical benefits “are deferred compensation for the compensation forgone during active employment in exchange for benefits and security upon retirement.” Id. Such benefits are, in other words, “the fruit of the tree which he [the employee] has planted, which he has nurtured with his continuous loyal service and watered with the sweat of his years of dedicated work.” Lowe v. Jones, 414 Pa. 466, 200 A.2d 880, 882 (1964).

Tellingly, this quid pro quo conception of work in general— and post-retirement medical benefits in particular — is reflected in the language of the very Ordinance at issue in this case. As quoted in a footnote in the Majority Opinion, the Ordinance’s preamble provided as follows:

WHEREAS WHITE DEER TOWNSHIP, UNION COUNTY, PENNSYLVANIA, has and continues to employ persons to perform services for the Township, and
WHEREAS, White Deer Township, Union County, Pennsylvania, desires to remain competitive in the workplace so that it may continue to attract qualified people to work for it, and
WHEREAS, White Deer Township, Union County, Pennsylvania, feels that medical insurance is a benefit that enhances its ability to attract qualified people as employees.

Reproduced Record 16a (emphasis added). Notably (and appropriately) absent in the Ordinance’s preamble is that post-retirement medical benefits were needed to help retain as *599well as attract employees. Such a motivation for passing this Ordinance, of course, would have been utterly inconsistent with the traditional understanding of post-retirement medical benefits as described above.

Moreover, even if the postulated desire to retain employees had been a purpose of the Ordinance, it certainly did not have the desired effect on the three employees sub judiee, who retired, respectively, twelve days, two years, and six months after they passed the Ordinance. This duck is both waddling and quacking. In particular, when the Ordinance was passed on December 18, 1997, Mr. Napp was a thirty-year employee of the Township who would retire twelve days later; Mr. Caris was a thirty-one year employee who would retire two years later; and Mr. Hartranft was an employee two weeks short of his twenty-year anniversary date (and thus full “vesting” of his new-found post-retirement medical benefit right) who would retire six months later.2

Moreover, this case is thus obviously distinguishable from Newport Township v. Margalis, 110 Pa.Cmwlth. 611, 532 A.2d 1263 (1987), cited by appellants, in which the Commonwealth Court held that a thirty-four-year employee was eligible for post-retirement medical benefits under a resolution granting such benefits to employees retiring after at least fifteen years of service even though he did not accumulate fifteen additional years of service after the resolution was passed. Leaving aside the fact that he retired a full decade after the resolution *600was passed, the employee in Newport Township was not also a supervisor (and thus did not help pass the resolution); therefore, that case has no bearing on the self-interest issue before this Court today.

Granted, by serving the Township for more than twenty years, the supervisors sub judice each undoubtedly planted, nurtured, and watered their respective trees. But that is not the issue. For nearly all their years of service — periods amounting to approximately 99.9%, 93.5%, and 97.5% of their respective tenures with the Township — these supervisors were compensated based on terms that included the absence of post-retirement medical benefits, and they knew exactly what their benefits were. The provision of post-retirement medical benefits was simply not a term that the supervisors bargained for when they agreed to serve or that “attracted]” them to work for the Township. Thus, by passing the Ordinance on their way out of the door, the supervisors essentially were helping themselves to more than just the fruit of their own labors. In light of the foregoing, even if, after strictly construing the Second Class Township Act, I agreed with the Majority that the Act provides supervisors the power to grant themselves post-retirement medical benefits, I would not find that the supervisors sub judice strictly complied with such power. Therefore, I would affirm the Commonwealth Court’s determination that these supervisors lacked the authority to confer post-retirement medical benefits upon themselves and their spouses.3

. See Commonwealth ex rel. Whitehouse v. Raudenbush, 249 Pa. 86, 94 A. 555, 555 (1913) (“There is a general rule of law that no member of a governing body shall vote on any question involving his own character or conduct, his right as a member, or his pecuniary interest, if that be immediate, particular and distinct from the public interest.'') (internal quotation marks omitted).

. The timing of the supervisors' decisions to grant themselves post-retirement medical benefits — and, in relatively quick succession, to begin earning them — is telling in another respect. Although the parties overlook the fact, by completing their service as supervisors two weeks after passing the Ordinance in December 1997, Messrs. Napp and Caris avoided the prospect of answering to their employers — the Township's voters — in the next municipal election, and, although Mr. Hartranft remained in office for eighteen months after voting for the Ordinance, it appears that the same can be said for him. See Majority Op. at 567-68, 985 A.2d at 748 (noting that Mr. Hartranft was first elected in 1977 and served continuously thereafter); 53 P.S. § 65403(a) (providing for six-year terms for supervisors of second-class townships). Therefore, by waiting until 1997 to vote themselves post-reliremeni medical benefits, the three supervisors were able to benefit from the controversial decision without running the risk of being unseated.

. With respect to the Majority's other holding in this case, I agree that the Township’s challenge to the Ordinance is not procedurally time-barred.