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HomeMy WebLinkAbout89-531 SwiftSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 • ADVICE OF COUNSEL April 21, 1989 Ms. Deborah M. Swift 89 -531 R.D. #1, Box 328AA Grindstone, PA 15442 Re: Conflict, Second Class Township, Secretary, Spouse as Township Auditor Dear Ms. Swift: This responds to your letter of March 20, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the Ethics Act imposes any prohibition or restrictions upon a public employee from serving as a secretary in a second class township when her husband is running for the position for township auditor. Facts: You state that you are a hired secretary in a second class township. After noting that you are not a supervisor, you advise that your husband has filed a petition to run for auditor in the township. You note that you have a supervisor in the township whose title is secretary /treasurer and that he is authorized to sign checks along with the other two supervisors and yourself. You conclude by requesting advice as to whether it would be a conflict of interest for you to serve as secretary in the township and have your husband serve as auditor in the same township. Discussion: As a secretary in the second class township, you are a public employee as that term is defined under the Ethics Act. 65 P.S. S402; 51 Pa. Code X1.1. As such, your conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Section 3. Restricted Activities. (a) No public official shall use his pubs confidential information holding public office or public employee is office or any received through his to obtain financial Ms. Deborah M. Swift April 21, 1989 Page 2 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official /employee to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official /employee to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. In the instant matter, the precise issue is whether the Ethics Act would be implicated if you served as secretary to the township and your husband were successful in his bid for the position of township auditor. In this regard, there does not appear to be any real possibility of any financial gain or inherent conflict arising if you were to serve as township secretary and your husband were to serve as township auditor. The Ethics Act does not state that it is inherently compatible for a public employee to serve as township secretary while her husband would serve as a public official as township auditor. However, the Ethics Act would restrict public officials /employees from using public office for his or her own financial gain or for the financial gain of his or her spouse. See Koslow v. State Ethics Commission, supra. However, in the instant matter there does not appear to be any possibility of any financial gain since you are not a supervisor but are the township secretary without any voting authority. Further, your husband, if successful in his bid would be elected to the position of township auditor by voters in the township. Therefore, based upon the above facts and circumstances, the Ethics Act would not preclude you from serving as township secretary if your husband is successful in his bid for the position of township auditor. Ms. Deborah M. Swift April 21, 1989 Page 3 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a secretary in a second class township, you are a public employee subject to the provisions of the Ethics Act. Under the facts and circumstances outlined above, Section 3(a) of the Ethics Act would not preclude you from serving as secretary to a second class township if your husband becomes an auditor for the same township. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, q; Vincent J. Dopko, General Counsel