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HomeMy WebLinkAbout89-603 SiegelSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 27, 1989 Mr. Arthur B. Siegel 89 -603 Attorney at Law 511 Broad Street Post Office Box 1154 Milford, PA 18337 Re: Simultaneous Service, Conflict, Building Inspector, Vacancy board member, Immediate Family, Spouse as Township Auditor. Dear Mr. Siegel: This responds to your letters of October 20, and November 21, 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 township auditor when her husband serves as building inspector and vacancy board member. Facts: In your capacity as solicitor for Blooming Grove Township and based upon a resolution of the board of second class township supervisors, as the appointing authority, you seek advice from the Commission as to the possible appointment of an individual to a vacancy on the township board of auditors. You note that the candidate for the position is the wife of the current building inspector who also serves as chairman of the vacancy board. You state that it is very difficult to find people who will serve in various capacities at the local level. The board will petition the court to fill the vacancy but prior to doing so, the board wants to be assured that the proposed appointment would not conflict with the Ethics Act. Discussion: As an Auditor for Blooming Grove Township, the individual would become a "public official" as that term is defined in the Ethics Law and hence she would be subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code 51.1. Mr. Arthur B. Siegel Page 2 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. 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 and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that official /employee would be influenced thereby. Mr. Arthur B. Siegel Page 3 In applying the above provisions of Section 3(a) of the Ethics Law to the instant matter, it is noted that the Ethics Law does not prohibit members of the same immediate family from being elected or employed by a municipal body. However, the Ethics Law would restrict a public official or employee from using the authority of office to obtain a private pecuniary benefit for himself or a member of his immediate family. In the instant matter, Section 3(a) of the Ethics Law would not prohibit the employment to the position of township auditor when her spouse serves as building inspector and chairman of the vacancy board. However, in performing her duties as township auditor which are outlined in 53 P.S. §65545, the auditor could not participate or inspect or audit as to matters that would involve her spouse either in his capacity as building inspector or chairman of the vacancy board. In any situation that would involve financial or personal matters relative to either of her husband's two positions, Section 3(j) of the Ethics Law would require her not to participate, publically announce her abstention as well as file a written memorandum with the person responsible for recording the minutes of the meeting of the township board of auditors. In practice, of course, it would be unlikely that the auditor would be in a position to review, inspect or audit the accounts of her husband since the statutory functions of township auditors are limited to the accounts of the supervisors, working supervisors, treasurer, tax collector and district justices. 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 an auditor for Blooming Grove Township, the individual would be a public official subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not prohibit an individual from serving as township auditor whose husband is building inspector and chairman of the vacancy board, the individual who would become auditor could not participate, inspect, audit or perform review functions if the situation would arise that personal or financial matters of her husband as building inspector and chairman of the vacancy board would come before the board of auditors. If such a situation would arise, the disclosure requirements of Section 3(j) outlined above would have to be followed. 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 Mr. Arthur B. Siegel Page 4 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 52.12. Sincerely, Vincent "r. Dopko, Chief Counsel