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HomeMy WebLinkAbout84-568 GearyMr. Mark F. Geary Attorney At Law 63 South Main Street Washington, PA 15301 Dear Mr. Geary: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 May 23, 1984 ADVICE OF COUNSEL RE: Township Supervisor, Spouse as Auditor 84 -568 This responds to your letter of April 3, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether there is any conflict of interest presented where a township supervisor's spouse serves as an auditor within the township. Facts: You indicate that you represent a certain second class township in Washington County, hereinafter, the Township. In this Township, a certain supervisor, hereinafter, the Supervisor has been newly elected. This Supervisor is also the husband of an auditor, hereinafter, the Auditor for the Township. You indicate that the Auditor -wife is an incumbent in the office of auditor. Discussion: Initially, we note that your request asks for an opinion as to whether or not a conflict presently exists under the Second Class Township Code or any other rules or regulations of the Commonwealth. The jurisdiction of the Ethics Commission as set forth in the Ethics Act is limited to rulings and determinations of whether an individual's conduct does or does not present a conflict of interest under the Ethics Act, 65 P.S. 401 et seq. As such, we are not empowered to and this Advice should not be taken to provide a response or ruling under any code, law, rule or regulation other than the State Ethics Act. Turning to the State Ethics Act, it is clear that the Township Supervisor and the Auditor in this case, are both "public officials" as that term is defined in the State Ethics Act. See Section 2 of the Ethics Act, 65 P.S. 402. As such, the conduct of both of these individuals must conform to the requirements of the State Ethics Act. Mr. Mark F. Geary May 23, 1984 Page 2 However, the State Ethics Act does not contain any provision nor has the Commission made any ruling that indicates that it is inherently incompatible for a person to serve as a supervisor in the sairse township where that individual's spouse serves as an auditor. However, both of these individuals must also ensure that their conduct presents neither a conflict nor the appearance of a conflict with the poh is trust as required by the Ethics Act. Previous rungs of the Commission indicate that as a general rule a public official may not review, approve, or inspect any activity in which he might be interested as an individual. For example, the Commission has concluded that a zoning office:• who is also a developer could not issue permits to himself. See Simmons, 79 -056. Similarly, the Commission has concluded that the deveTope who is also elected to be a township supervisor could not inspect or approve his own work as a developer. See Sowers, 80 -050. With respect to auditing, these rulings indicate that an auditor may not audit the township books where the spouse of the auditor serves as a supervisor. See Restivo, 80 -518 and Detweiler, 81 -648. In her capacity as Auditor the spouse of the Township otticial will review annually the accounts, books, and records which were prepared in part and reflect the actions of the Auditor's spouse as Supervisor. Also, should the Supervisor - spouse act or be appointed as secretary- treasurer, superintendent, roadmaster, or laborer, the Auditor would be responsible for fixing the Supervisor's compensation as such under the provisions of the Second Class Township Code. However, because two auditors, acccrding to our reading of the Second Class Township Code, can constitute a quorum, the Auditor - spouse could theoretically resolve any conflict of having to review and approve matters relating to her spouse by removing herself from situations where the actions of her spouse are involved. Thus, the auditor- spouse would have to abstain from voting and or participation in any review involving action which would be of interest to her Township Supervisor - spouse. The Auditor - spouse would, in order to remove any appearance of a conflict of interest with the public trust, also have to abstain from any decision as to the amount or extent of compensation to be provided to her Supervisor-spouse if he were to serve in the capacity as superintendent, roadmaster, laborer or secretary- treasurer to the Township. The above restrictions may appear to preclude the Auditor- spouse from acting in a significant number of substantive issues and /cr decisions. This, of course, is a detriment and represents a barrier which may necessitate the Auditor- spouse's removal from many substantive decisions. You, as solicitor, and the Auditor - spouse must consider this effect when you evaluate the restrictions presented by the Ethics Act and in your efforts to advise your clients as to how to avoid a conflict of interest or the appearance of a conflict of interest under the Ethics Act. Mr. Mark F. Geary May 23, 1984 Page 3 Conclusion: The fact that a husbnad and wife serve as the Township Auditor and the Township Supervisor is not per se, prohibited by the Ethics Act but is the type of situation which may give rise to a conflict under Section 3(a) or an appearance of a conflict under Section 1 of the Ethics Act . Thus, should the Auditor - spouse continue in that office, she must abstain from participating in decisions involving the Township where those decisions would affect or be of interest to her spouse as Supervisor. Also, and in particular, the Auditor - spouse would be required to abstain from participating in decisions of the Board of Township Auditors with respect to the setting or fixing of the compensation, benefits, etc., to be paid to supervisors serving as superintendents, roadmasters, laborers, or secretary - treasurers of the Township. Pursuant to Section 7(9)(ii), this Advice i5 a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing 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 request that the full Commission review this Advice. A personal appearance before the full Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of thi s Advice pursuant to 51 Pa. Code 2.12. SSC /na Sincerely, Sondra S. ri sti an son General Counsel sir-04r?