Loading...
HomeMy WebLinkAbout90-525 NanovicSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 20, 1990 Mr. Thomas Nanovic 90 -525 Nanovic Law Offices Attorneys at Law 57 Broadway P.O. Box 359 Jim Thorpe, PA 18229 -0359 Re: Simultaneous Service, Township Auditor, Township Employee. Dear Mr. Nanovic: This responds to your letter of February 6, 1990, with an attachment, 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 from also serving or being employed as a township employee. Facts: The Board of Supervisors of Towamensing Township as employer inquire as to the conduct of a township employee who has been elected as Township Auditor. The inquiry is whether a township employee may also serve as township auditor. The township solicitor contacted the Pennsylvania State Association of Township Supervisors which views the two positions as being incompatible, apparently under 53 P.S. 565411. The above cited law provides in part: "no auditor at the same time shall hold any other elective or appointive township office in the township in which he is employed as an auditor..." Your solicitor believes that the association interprets the cited provision of law to mean that a township emvlovees an appointive township office. Your solicitor questions that interpretation based upon 53 P.S. 565410: "no supervisor shall at the same time hold any other elective or appointive Mr. Thomas Nanovic Page 2 township office or position other than township road master or secretary treasurer." Your solicitor opines that because a township supervisor may be an employee, an auditor also may be employed by the township. The Board of Supervisors however believes that a conflict exists since the individual as auditor would be auditing his payroll as an employee. You conclude by requesting advice on the above situation. Discussion: As an Auditor for Towamensing Township, the township employee is a "public official" as that term is defined in the Ethics Law and hence he is subject to the provisions of that 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. 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 Mr. Thomas Nanovic Page 3 exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 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. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if township auditor were to serve both as a public official /employee and as township employee. Deitrick Opinion 89 -022. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as township employee. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. Smith Opinion, 89 -010. In the situation outlined above, township auditor would not be serving entities with interests which are adverse to each other. However, if a situation arises where the township auditor develops an adverse interest, then he must remove himself from that particular matter and disclose the nature of his interest in a written memorandum to the appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise, additional advice may be sought from the Commission. It appears that the likelihood of such a conflict arising would be remote since the individual in his position as township employee would not have any responsibility in making up the payroll or making disbursements. 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. Specifically not addressed in this advice is the applicability of the Second Class Township Code. Mr. Thomas Nanovic Page 4 Conclusion: As an Auditor for Towamensing Township, the township employee is a "public official" subject to the provisions of the Ethics Law. As a public official /employee, the individual may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of township employee and township auditor. Lastly, the propriety of the proposed course of 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. 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. erely, Vincent J."Dopko, Chief Counsel