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HomeMy WebLinkAbout89-599 TindallMs. Alice P. Tindall R.D. #8, Box 5 New Castle, PA 16102 Dear Ms. Tindall: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 27, 1989 89 -599 Re: Conflict, Township Supervisor, Auditor, Immediate Family, Auditor's Spouse as Supervisor. This responds to your letter of November 14, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a Second Class Township Auditor whose husband is an elected township supervisor. Facts: You are the elected auditor in North Beaver Township, Lawrence County, Pennsylvania wherein your husband is also serving as an elected supervisor who does not work or receive any benefits other than meeting pay. You inquire as to whether there is any conflict of interest on your part by being township auditor. The township solicitor has stated that there would be no conflict provided you do not vote on any matter of monetary gain for your husband. You conclude by requesting an opinion from the Commission on this matter. Discussion: As an Auditor for North Beaver Township, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. Ms. Alice P. Tindall Page 2 The following terms are defined under the Ethics Law: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that official /employee would be influenced thereby. In applying the provisions of Section 3(a) of the Ethics Law quoted above to the instant matter, the Ethics Law does not prohibit or restrict members of the same family from seeking or being elected to public office. The restriction of Section 3(a) is that a public official may not use the authority of office to obtain a private pecuniary benefit for himself or a member of his immediate family. Ms. Alice P. Tindall Page 3 In this case it is clear that your spouse is a member of your immediate family as that term is defined under the Ethics Law. Accordingly, although there is no prohibition or restriction from you serving as auditor when your husband is supervisor in the same township, you could not participate in any matter which could result in a financial benefit to your husband nor could you participate in any personal matter as to him. In particular, you could not participate in fixing his compensation although it is noted that your husband is not a working supervisor and therefore is limited to the statutory compensation fixed for non - employed supervisors. You of course could not participate in auditing the books and accounts of the board of supervisors in light of the fact that your spouse is a township supervisor. The foregoing is true in light of the powers that the board of auditors have in surcharging the supervisors pursuant to 53 P.S. S65545. In light of the above, Section 3(j) of the Ethics Law would require you to publically announce your interests and the limitation of your participation as outlined above and in addition file a written memorandum to that effect with the person responsible for recording the minutes of the meeting of the township auditors. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Auditor for North Beaver Township, you are a "public official" subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law, does not prohibit you from serving as an auditor in the township where your husband is elected supervisor, you may not participate, inspect or audit the books of the board of supervisors nor could you fix the compensation of your husband if he were to become a working supervisor. Section 3(j) of the Ethics Law requires you to publically announce your interest together with disclosing same in a written memorandum filed with the person responsible for recording the minutes of the meeting of the board of township auditors. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. 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. Ms. Alice P. Tindall Page 4 such. This letter is a public record and will be made available as 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 52.12. Sincerely, VincentVJ. Dopko, Chief Counsel