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HomeMy WebLinkAbout85-572 Wilt IIIMr. Raymond Wilt, III 119 9th Avenue Pittsburgh, PA 15229 Dear Mr. Wilt: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 August 13, 1985 ADVICE OF COUNSEL Re: Township Auditor, Spouse Township Finance Director 85 - 572 This responds to your letter of July 29, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether the Ethics Act places any prohibition upon a person being employed as a Township Finance Director in the same township where that person's spouse serves as Township Auditor. Facts: You serve as one of the three elected auditors in Ross Township, Allegheny County, Pennsylvania. This is a township of the Second Class. You indicated that your wife has been appointed to a part -time position of Township Finance Director. You indiciate that the township generally employs an outside accounting firm to audit the township records. As an auditor your function involves examining disbursements made by the township, auditing the wage tax office, the police department and determining if proper accounting procedures are being followed. This audit generally lasts from January until April. As Finance Director, your wife will be establishing a computer operation in the township and preparing the 1986 budget. You ask, if any, restrictions are presented by this situation under the provisions of the State Ethics Act. 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. Mr. Raymond Wilt, III August 13, 1985 Page 2 Turning now to the Ethics Act, it is clear that as township auditor, you are a public official as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of the Act. See, 79 -004 Nallo. Generally, the State Ethics Act contains no provisions and the Ethics Commission has made no rulings indicating that the situation involved herein would present any inherent incompatibility. The Act does provide 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). The Act further provides: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. In this respect you may not, as auditor, engage in any activity that would be in violation of this Section. That is, you may not use your official position or any confidential information acquired therein to obtain any financial gain either for yourself or for your wife in her position. Additionally, 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). 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 Mr. Raymond Wilt, III August 13, 1985 Page 3 concluded that a 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; Wheeler, 85 -518. With respect to auditing, Commission 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, if you review the accounts, books and records which may in part reflect the actions of your spouse, you must abstain from such review. You are also empowered to surcharge 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 in relation to your spouse 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 yourself specifically from situations where the actions of your spouse are involved. Also if applicable, you should not participate the fixing of the compensation paid to your spouse. Conclusion: As an elected township auditor, you are a public official within the provisions of the State Ethics Act. As such, your conduct must conform to the requirements of the Act as outlined above. 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. 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 /sfb Sincerely, ohn J. C• 'no Gener. ounsel