Loading...
HomeMy WebLinkAbout85-509 IsraelSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 January 24, 1985 ADVICE OF COUNSEL Stephen Israel, Esquire 85 -509 Duffy, Israel, & Specter 1109 Grant Building Pittsburgh, PA 15219 Re: Conflict of Interest; Township Commissioner's Participation in Matters Related to Spouse Seeking Township Office Dear Mr. Israel: This responds to your letter of January 15, 1985, wherein you requested advice from the State Ethics Commission. Issue: Whether there is any prohibition under the State Ethics Act that would prevent an individual from seeking election or appointment to the office of Township Treasurer in the township where his spouse serves as an elected Township Commissioner. Facts: You have requested advice as the representative of Leet Township, a Township of the First Class. You indicate that the husband of one of the township's five commissioners has expressed an interest in seeking election or appointment to the office of Township Treasurer. You have also indicated that this individual will also serve as the Township Tax Collector. Discussion: At the outset it should be noted that the Commissioners and Treasurer of a township are public officials within the meaning of and subject to the provisions of the State Ethics Act. The term public official includes, "any elected or appointed official in ... any political subdivision," except those who receive "no compensation other than reimbursement for actual expenses." 65 P.S. 402. The Commissioners, as well as the Treasurer, are elected officials, 53 Pa. C.S.A. §55503, who are compensated, 53 Pa. C.S.A. § §55603, 55703, thereby falling within the purview of the Act. See, Opinions 81 -009, Knox; 79 -004, Nallo. Stephen Israel January 24, 1985 Page 2 With regard to the first issue herein presented, the Ethics Act generally places no prohibition or restrictions on whether an individual may seek election to a public office. Of course, all candidates must comply with the provisions of the Act regarding the filing of financial interest statements. 65 P.S. 404. Additionally, the Act provides that: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). These Sections of the Act are mentioned not to imply any impropriety or suggest that the Commission believes that these provisions of law have been or will be violated, but rather to provide a complete response to your question. As long as the public official, (i.e. the Commissioner), does not employ her public office, or any confidential information obtained therein, to benefit or otherwise secure a gain for her spouse (the candidate), there would be no prohibition under the Ethics Act to the spouse seeking election. We turn now to the second issue regarding whether the individual seeking the office of treasurer may be appointed to the position of Treasurer /Tax collector. A review of the First Class Township Code reveals that any vacancy occurring in the office of Township Treasurer may be filled by the Board of Stephen Israel January 24, 1985 Page 3 Township Commissioners. 53 Pa. C.S.A. §55530. The Treasurer so appointed may also serve as Tax Collector. 53 Pa. C.S.A. §55511, 55505. In addition, it should be noted that the salary of all elected and appointed officers of a township, including the Treasurer, is fixed by the Board of Township Commissioners. As previously noted, Section 403(a) of the Ethics Act prohibits a public official from employing said office to obtain financial gain for a member of such persons immediate family. 65 P.S. 403(a). A "member of ones immediate family" is defined in the Act as including a spouse residing in the same household. 65 P.S. 402. Additionally, Section 401 of the Act sets forth the general purpose of the Act that public officials should avoid both conflicts of interests and the appearance of such conflicts. In light of the foregoing facts it is clear that the Commissioner- Spouse must abstain from any participation or voting with respect to the appointment of her husband to any township position as well as in regard to the salary or other compensation to be received thereafter. This result is occasioned, in that by participating in these matters the Commissioner - Spouse would be using her public office to obtain financial gain for her spouse. Such participation would also be a conflict of interest or at the very least have the appearance of such a conflict. The Commissioner - Spouse must similarly abstain from voting and /or participation in any review involving action which would be of interest to her spouse. This result is in accordance with prior Commission opinions. See Opinion 83 -012, O'Reilly. The above restrictions may appear to preclude the Commissioner - Spouse from acting in a significant number of substantive issues and /or decisions. This, of course, is a detriment and represents a barrier which may necessitate the Commissioner- Spouse's removal from many substantive decisions, You, as solicitor, and the Commissioner - 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. Additionally, this advice only pertains to restrictions under the State Ethics Act as the jurisdiction of the Ethics Commission does not encompass the interpretation of other provisions of law. Conclusion: The fact that an individual seeks election or appointment to a public office in a township where that individual's spouse also serves as a Township Commissioner is not, in and of itself, violative of the Ethics Act. However, both of these individuals must also ensure that their conduct presents neither a conflict nor the appearance of a conflict with the public Stephen Israel January 24, 1985 Page 4 trust as required by the Ethics Act. Thus, the Commissioner- Spouse must not participate in the appointment of her spouse to any township position, or the fixing of the salary, or the compensation to be received. Also the Commissioner - Spouse must similarly, abstain from participating in decisions involving the township where those decisions would affect or be of interest to her spouse as Treasurer. Pursuant to Section 7(9)(ii), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. 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 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 this Advice pursuant to 51 Pa. Code 2.12. JJC /sfd This letter is a public record and will be made available as such. Sincerely, John J. General Counsel