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