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HomeMy WebLinkAbout85-518 WheelerMs. Sharon Wheeler Ms. Hazel Williams Rd. 5 Moscow, PA 18444 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 February 28, 1985 ADVICE OF COUNSEL 85 -518 Re: Township Auditor, Spouse as Supervisor Re: Township Auditor, Daughter as Township Secretary- Treasurer Dear Ms. Wheeler and Williams: This responds to your consolidated letter of February 8, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether any restrictions are placed upon township auditors where the spouse of one auditor serves as township supervisor and where the daughter of another auditor serves as the township secretary- treasurer. Facts: Both Ms. Wheeler and Ms. Williams are auditors in Madison Township, Lackawanna County. This is a township of the second class. Ms. Wheeler's spouse currently serves as a township supervisor in Madison Township and the daughter of Ms. Williams is the secretary- treasurer in Madison Township. Your daughter does not reside in the same household. Specifically, you have asked whether within the purview of the Ethics Act, 65 P.S. §401 et. seq you may audit the township books in light of the foregoing relationships. Discussion: Initially, it must be noted that the jurisdiction of the Ethics Commission, as set forth in the Ethics Act, is limited to rulings and determinations of an individual's duties within the purview of the Ethics Act. As such, the Commission is not empowered to issue advice regarding any other code, statute, rule or regulation. Turning now to the Ethics Act, it is clear that township supervisors, auditors and the township secretary- treasurer are "public officials" as that term is defined in the State Ethics Act. 65 P.S. §402. As such, the conduct of these individuals must conform to the requirements of the Act. See; 80 -050, Sowers, 79 -004 Nallo. Ms. Wheeler and Ms. Williams February 28, 1985 Page 2 Generally, the State Ethics Commission may address any area of potential conflict of interest or the appearance thereof as set forth in the Act. 65 P.S. §401; 403(d). With respect to the auditor- supervisor relationship, the Ethics Act contains no provision indicating that it is inherently incompatible for a person to serve as an auditor in the same township where that individual's spouse serves as a supervisor or where the auditor's daughter serves as township secretary /treasurer. Township auditors are in part responsible for auditing, settling and adjusting the accounts of the supervisors, superintendents, roadmasters, treasurer and tax collectors. 53 P.S. §65542. The auditors are empowered to surcharge any elected or appointed official whose action has contributed to the financial loss of the township. In this capacity you must ensure that your conduct presents neither a conflict nor the appearance of a conflict with the public trust as required by the Ethics Act. Previous rulings 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 officer who is also a developer could not issue permits to himself. See Simmons, 79 -056. Similarly, the Commission has concluded that the developer 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 should not audit the books and accounts of the board of supervisors, where the spouse of the auditor serves as a supervisor. See Restivo, 80 -518; Detweiler, 81 -648; Geary, 84 -568. In your capacity as auditor, you annually review the accounts, books, and records which were prepared in part and reflect the actions of your spouse as supervisor. You are also empowered to surcharge these officials if in your review you find that their actions contributed to a financial loss by the township. In this respect any action that you would take or fail to take surely would, at a minimum, be an appearance of a conflict of interest. However, because two auditors, according to our reading of the Second Class Township Code, can constitute a quorum, you could resolve any conflict of having to review and approve matters relating to your spouse by removing your self specifically from situations where the actions of your spouse are involved. Also, as a reminder you should not participate the fixing of the compensation paid to your spouse. Regarding, the situation where the township treasurer is the daughter of an auditor, the previously cited Sections of the Ethics Act must also be applied. While the daughter in this situation is not residing in the same household, See 65 P.S. §402, this definitional restriction is only applicable in relation to the prohibitions set forth in Section 3(a) of the Ethics Act. Ms. Wheeler and Ms. Williams February 28, 1985 Page 3 65 P.S. §403(a). Thus, even though the daughter of the auditor is not considered a member of the auditor's immediate family for the purpose of Section 403(a), this factor is not relevant in determining if there is a conflict of interest or the appearance thereof pursuant to Sections 401 and 403(d) of the Act. Therefore, this auditor must similarly not participate in the audit of the books and accounts of the office of the township treasurer. See; Leymarie, 83 -517; Sirott, 82 -590. This result follows from the fact that while the position of township secretary and township treasurer may be held by one individual, the duties and responsibilities of each position is separate and distinct. See 53 P.S. § §65530; 65540. The treasurer is responsible for funds collected and received for the township. In this respect the treasurer must keep accounts of such funds. 53 P.S. §65530. These accounts are subject to the review of the auditors. Similar conflict of interest concerns are raised in light of these statutory functions. It should be noted that the role of the auditor's daughter as township secretary would not prohibit this auditor from reviewing the accounts of the board of supervisors. The position of township secretary is of a clerical nature, See; 63 P.S. 65540, and in reviewing the accounts of the supervisors this auditor apparently would not be reviewing any action that had been taken or initiated by her daughter in the capacity of secretary. Similarly, the auditor, whose spouse is a supervisor would not be precluded from reviewing the books and accounts of the office of treasurer. Conclusion: As auditors of a township of the second - class, you are public officials within the purview of the Ethics Act. As such, your conduct must be in accord with that Act as outlined herein. 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. This letter is a public record and will be made available as such. Ms. Wheeler and Ms. Williams February 28, 1985 Page 4 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 Since y, John ontino Gerferal Counsel