HomeMy WebLinkAbout85-592 DenhartMr. Donald W. Denhart
Borough Secretary
Patterson Heights
Beaver Falls, PA 15010
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
October 25, 1985
ADVICE OF COUNSEL
Re: Borough Secretary, Spouse, Borough Tax Collector
Dear Mr. Denhart:
This responds to your letter of October 8, 1985, wherein you requested
the advice of the State Ethics Commission.
Issue: Whether the spouse of a borough secretary may serve as the borough tax
collector.
Facts: You indicate that you are the Borough Secretary for the Borough of
Patterson Heights. You are not a member of council. Your wife is currently a
candidate for the position of borough tax collector. You seek the advice of
the State Ethics Commission regarding whether there is any conflict of
interest occasioned by this situation.
Discussion: As a borough secretary, we will assume that you are a public
official within the purview of the State Ethics Act and subject to the
requirements thereof.
The Ethics 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).
85 -592
Mr. Donald W Denhart
October 25, 985
' Page 2
Initially, we note that within this provision you may not use your public
position to benefit your spouse's campaign. You may not, for example, use the
personnel, facilities, etc. of your office to enhance, conduct or otherwise
support her campaign. Nelson, 85 -009; Cessar, 82 -002.
With respect to whether you and your spouse may simultaneously serve in
the positions set forth herein, the Ethics Act provides no per se prohibition
upon such simultaneous service.
The State Ethics Commission may, however, address this issue under its
power to review other areas of possible conflicts of interest. See, 65 P.S.
§403(d). In such situations, the Commission must look to the particular facts
of a case in order to determine if there is an inherent or actual
incompatibility. The conduct of a public official or employee may and should
not present a conflict of interest or the appearance thereof. That is, one
may not serve or appear to serve two or more competing interests. See Alfano,
80 -007; Nelson, 85 -009.
As borough secretary you are responsible for the following duties:
The secretary shall attend all meetings of the borough
council and shall keep full minutes of its proceedings; he
shall transcribe the bylaws, rules, regulations and
ordinances adopted into a book kept for that purpose; he
shall preserve the records and documents of the borough,
and shall have custody of the corporate seal. He shall
certify copies of any book, paper, record, bylaw, rule
regulation, resolution, ordinance or proceeding of the
borough, under the seal thereof which copies, when so
certified, shall be admissible in evidence in any court of
the Commonwealth. He shall attest the execution of all
instruments, record all ordinances and attest the same by
his signature. He shall file or record proof of service
of all notices required by law, and his certificate
thereof shall be good evidence of such notice. The
borough shall furnish the secretary with such dockets,
books, forms and files as are necessary for the conduct of
his office, such dockets, books, forms and files to be and
remain the property of the borough. He shall deliver to
his successor the seal and all books, papers and other
records and things belonging to the borough.
53 P.S. 46111
As borough tax collector your spouse would be generally responsible for
the collection of all state, county, borough, school, institution, district,
and other taxes, levied within the borough by the authorities empowered to
levy taxes. 53 P.S. §46086.
Mr. Donald VI. Denhart
October 25, 1985
- Page 3
Based upon the duties fixed by statute, there appears to be no inherent
incompatibility in the simultaneous service of both you and your wife as
borough officials.
We do note, that in the event that you are called upon to take any
official action in relation to your spouse, a conflict of interest may
develop. As such, you must abstain from participation in any matter that
affects or is to the benefit of your spouse. Opsitnick, 84 -552.
Similarly, your wife, if elected, may not take any action that would
inure to your benefit. This would include the use of the respective public
positions as well as any confidential information obtained therein.
Conclusion: There is no inherent incompatibility or per se prohibition upon
the simultaneous service by you and your spouse as borough officials. As
public officials your conduct and that of your wife must conform to the
requirements of the State Ethics 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.
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
This letter is a public record and will be made available as such.
Sincerely,
General •unsel