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HomeMy WebLinkAbout84-506 FisherDaniel Fisher Box 70, RD #3 Bellefonte, PA 16823 STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 Ma.hng Address. January 17, 1984 ADVICE OF COUNSEL RE: Boggs Township, Auditor, Former Supervisor Dear Mr. Fisher: 84 -506 This responds to the letter of Solicitor David A. Flood and your communication with our office of January 5, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether there are restrictions on your conduct as a newly elected auditor and a former supervisor in the Township of Boggs, hereinafter the Township. Facts: Originally, Mr. Flood had written to us as Solicitor of the Township and posed the question outlined above. He provided us with certain facts, which you, in your telephone communication with us of January 5, 1984, indicate should be adopted by us in a direct response to your authorization to render advice to you about your conduct. The facts as presented indicate that you had served as a Township Supervisor until the expiration of your term on December 31, 1983. You have also been elected as a Township Auditor to begin a term in 1984. The Township Auditors have certain designated duties including auditing, settling, and adjusting the accounts of the Supervisors, superintendents, roadmasters, the treasurer, and tax collector of the Township. The Auditors, must also audit the dockets, transcripts, and other official records of the Justice of the Peace to determine the amount of fines and costs paid over or due to the Township. Finally, the Auditors must also fix compensation for the Supervisors serving as roadworkers and appointed as workers or roadmasters under the provisions of the Second -Class Township Code, 53 P.S. 65545. It should also he noted that you did not serve as a roadmaster, superintendent, treasurer, or tax collector while serving in the office of Township Supervisor, although, as a newly elected Auditor, it would seem that you would hav? a legal obligation to audit these accounts according to the information provided by Solicitor Flood. State Ethics Commission • 308 FinancF Building • Harrisburg, Penncylv.3nik. Daniel Fisher January 17, 1984 Page 2 Discussion: As an elected Auditor within the Township you are a "public official" as that term is defined in the State Ethics Act. See 65 P.S. 402. As a "public official" your conduct must conform to the requirements of the State Ethics Act. The opinions of the State Ethics Commission clearly indicate that as a general matter, a public official may not review, inspect, or approve his own work especially where that inspection, review, or approval is beneficial to the individual public official. See, for example, Simmons, 79 -056, where the Commission held that a zoning officer, who also was a developer within the Township, could not issue building permits to himself or his family or a business with which he is associated; Sowers, 80 -050, where the Commission• held that a developer who was also a Township Supervisor could not perform inspections of his own work; Restivo, 80 -518, where the spouse - Auditor within a Township could not audit the books of the Township Supervisor who was his wife; and Oetweiler, 81 -648, which relying upon Restivo concluded that it was an appearance of a conflict of interest for a spoL!se o1 a Township Supervisor to serve as Auditor and to settle the books of the Township Supervisor. Given the precedent of the Commission and the general conclusions reached in their rulings, it is clear that as an Auditor, you may not audit, settle or adjust the accounts of the Township Supervisors over which or in which you played any part as a Supervisor. This is particularly obvious when it is recognized that as an Auditor you have a responsibility to approve these books but also to impose surcharges or recommend actions as Auditor that would be in essence a disapproval of the actions of the Board of Township Supervisors on which you sat. However, while we must conclude that you may not audit those books in which you as a Supervisor would be interested, there is no similar reservation or prohibition against your serving as Auditor in general or, as Auditor, auditing the dockets, transcripts, and other official records of the Justice of the Peace, the tax collector, or any other books other than those relating to the Supervisors over which you may have responsibility as Auditor. Likewise, in your capacity as Auditor, we see no reason why you could not perform the function of setting the salary of the Township Supervisors for the current year In this function or action you would riot be affecting or reviewing or recommending or declining to recommend action as to any activity or actions in which you participated as a Supervisor. Conclusion: The Ethics Act does not prohibit you, as a former Supervisor, from acting as or assuming the responsibility of the elected Auditor except insofar as you may attempt to or be required to audit, settle, or adjust the accounts of the Board of Supervisors on which you sat. In this respect you may not audit, settle, or adjust the accounts of the Board of Supervisors on which you sat. Otherwise, you may undertake and perform all the functions required of you as an elected Auditor, including the setting of salary of the Township officials serving as roadworkers, roadmasters, or otherwise and to audit the dockets, transcripts, and other official records of the Justice of the Peace or tax collector. Daniel Fisher January 17, 1984 Page 3 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 made,' in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /rdp cc: David A. Flood, Esquire Sincerely, (-4WA r -- %j / / / /Sandra S. Chi stianson General Counsel