HomeMy WebLinkAbout07-603 LIGHTNERDaisy Lightner
1879 Valley Road
Marysville, PA 17053
Dear Ms. Lightner:
ADVICE OF COUNSEL
December 26, 2007
Based upon the above submitted facts, you pose the following questions:
07 -603
This responds to your letter of November 13, 2007, 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., would present any prohibitions or restrictions upon a township
secretary /treasurer, whose husband is a newly - elected township supervisor, with regard
to: (1) co- signing township payroll checks payable to her husband; (2) preparing the
minutes for meetings of the board of supervisors; (3) administering the oath of office to
her husband in her capacity as a Notary Public; or (4) listing checks in a certain manner
for approval by the supervisors at board meetings.
Facts: You have served as the Secretary /Treasurer for Rye Township
"Township ") for almost fifteen years. You are not a member of the Township Board of
Supervisors ( "Board "). You state that your husband, Robert Lightner, has been elected
as a Township Supervisor and will take office at the Township's organization meeting on
January 2, 2008.
You state that in your capacity as Treasurer, you are responsible for the
Township's finances and payroll, and you are listed as a co- signer on the Township's
accounts payable checks and salary checks.
You state that all payroll reports and checks are completed in -house at the
Township. You prepare the payroll for all employees and elected officials of the Board.
Salary checks require a minimum of two signatures.
You state that all checks are presented for approval at the Board meetings. You
state that you have previously listed checks by number, for example, "Payroll checks #s
4200 -4212 in the amount of $5,000.00. No checks void." You further state that a check
register listing the individual checks is provided to all." (November 13, 2007, letter of
Daisy Lightner, at 2).
Lightner, 07 -603
December 26, 2007
Page 2
(1)
Whether it would be a conflict of interest for you to co -sign your
husband's monthly meeting or special meeting paychecks where
your husband's salary as a Board Member would be as set by a
Board ordinance;
(a) If it would be determined that you should not sign your
husband's monthly meeting or special meeting paychecks,
what you should do if one of the other Supervisors would be
unavailable to sign such check(s);
Whether it would be a conflict of interest for you to prepare the
minutes for monthly or special meetings, where a majority vote of
the Board would be required to approve the minutes;
Whether it would be a conflict of interest for you, as a Notary
Public, to administer and sign your husband's oath of office prior to
his taking office on January 2, 2008; and
Whether you would be permitted to continue to list checks by
number when they are presented for approval at the Board
meetings or whether you should list the checks in a different
manner to avoid a conflict of interest on your part.
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 the Township Secretary /Treasurer, you are a public official /public employee
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
Lightner, 07 -603
December 26, 2007
Page 3
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.
"Immediate family." A parent, spouse, child, brother
or sister.
65 Pa. C. S. § 1102.
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from using the authority of the 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.
In each instance of a conflict of interest, the public official /public employee would
be required to abstain fully from participation. The abstention requirement would not be
limited merely to voting, but would extend to any use of authority of office including, but
not limited to, discussing, conferring with others, and lobbying for a particular result.
Juliante, Order 809.
In applying the above provisions of the Ethics Act to your inquiries, you are
advised that your husband is a member of your "immediate family" as that term is
defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, as the
Township Secretary /Treasurer, you would generally have a conflict of interest in matters
that would financially impact you, a member of your immediate family such as your
husband, or a business with which you or a member of your immediate family is
associated. In each instance of a conflict of interest, you would be required to abstain
fully from participation.
Having established the above general principles, your specific inquiries shall be
addressed.
In response to your first specific inquiry, you are advised as follows. You would
generally have a conflict of interest as to signing Township checks payable to your
husband. However, a conflict of interest would not exist as to signing checks for fixed or
predetermined payments as to which there would be no disputes. See, Krushinski,
Order 168.
Thus, you are advised that you would generally have a conflict of interest under
Section 1103(a) of the Ethics Act with regard to signing any Township checks payable
to your husband where the payments would not be fixed or predetermined but would be
subject to review, such as, for example, payments for expense reimbursements.
However, you would not have a conflict of interest in co- signing pre- fixed, routine, and
uncontested checks payable to your husband for monthly meeting or special meeting
pay where the amount of such payments would be set by Board ordinance.
As noted above, in each instance of a conflict of interest, you would be required
to abstain fully from participation. You are advised that when you would have a conflict
of interest as to a check, the unavailability of a Supervisor to sign that check in your
Lightner, 07 -603
December 26, 2007
Page 4
place would have no legal significance and would not operate to permit you to sign such
check.
In response to your second specific inquiry, you are advised that in the absence
of a private pecuniary benefit to you, a member or your immediate family such as your
husband, or a business with which you or a member of your immediate family is
associated, you would not have a conflict of interest under Section 1103(a) of the Ethics
Act with regard to the preparation of the minutes for monthly or special meetings of the
Board.
In response to your third specific inquiry, you are advised that Section 1103(a) of
the Ethics Act would not regulate you in your separate capacity as a Notary Public (see,
51 Pa. Code § 11.1 (definition of "'public official, (ii)). Therefore, Section 1103(a) of the
Ethics Act would not apply to prohibit you from acting in your capacity as a Notary
Public to administer and sign your husband's oath of office.
In response to your fourth specific inquiry, you are advised that in the absence of
a private pecuniary benefit to you, a member of your immediate family such as your
husband, or a business with which you or a member of your immediate family is
associated, you would not have a conflict of interest under Section 1103(a) of the Ethics
Act with regard to listing Township checks for Board approval in any particular order or
manner. However, such a listing should enable Board Members to identify checks that
were paid to you, a member of your immediate family, or a business with which you or a
member of your immediate family is associated.
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. Specifically not addressed herein is the applicability of
the Second Class Township Code or the Notary Public Law.
Conclusion: As Secretary /Treasurer for Rye Township ( "Township "), you are a
public official /public employee subject to the provisions of the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Your husband, Robert
Lightner, who will begin serving as a Township Supervisor on January 2, 2008, is a
member of your "immediate family" as that term is defined in the Ethics Act. As the
Township Secretary /Treasurer, you would generally have a conflict of interest in matters
that would financially impact you, a member of your immediate family such as your
husband, or a business with which you or a member of your immediate family is
associated. In each instance of a conflict of interest, you would be required to abstain
fully from participation. You would generally have a conflict of interest as to signing
Township checks payable to your husband. However, a conflict of interest would not
exist as to signing checks for fixed or predetermined payments as to which there would
be no disputes. You would not have a conflict of interest in co- signing pre- fixed, routine,
and uncontested checks payable to your husband for monthly meeting or special
meeting pay where the amount of such payments would be set by ordinance of the
Township Board of Supervisors ( "Board "). When you would have a conflict of interest
as to a check, the unavailability of a Supervisor to sign that check in your place would
have no legal significance and would not operate to permit you to sign such check. In
the absence of a private pecuniary benefit to you, a member or your immediate family
such as your husband, or a business with which you or a member of your immediate
family is associated, you would not have a conflict of interest under Section 1103(a) of
the Ethics Act with regard to the preparation of the minutes for monthly or special
meetings of the Board, or with regard to the listing of Township checks for Board
approval in any particular order or manner. However, as to the latter, such a listing
should enable Board Members to identify checks that were paid to you, a member of
your immediate family, or a business with which you or a member of your immediate
family is associated. Section 1103(a) of the Ethics Act would not apply to prohibit you
Lightner, 07 -603
December 26, 2007
Page 5
from acting in your separate capacity as a Notary Public to administer and sign your
husband's oath of office.
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
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