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HomeMy WebLinkAbout84-511 StillwagonMr. William C. Stiliwagon, Esquire 319 South Maple Avenue Greensburg, Pennsylvania 15601 Madmg Address STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 January 18, 1984 ADVICE OF COUNSEL RE: Simultaneous Service, Planning Commission, Auditor Dear Mr. Stiliwagon: 84 - 511 This responds to your letter of January 3, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether an individual may serve as a member of the local Township Planning Commission and as an Auditor within the Township and if so, what restrictions are placed upon his conduct pursuant to the Ethics Act. Facts: You indicate that you represent an individual who at the present time is a member of the local Township Planning Commission, hereinafter the Planning Commission. In the last municipal election this individual was also elected as Auditor within the same Township. You indicate that while he is paid as an Auditor, his work on the Planning Commission is performed without pay. The Planning Commission, however, does receive some funds from the Township to operate the Planning Commission. These funds, however, are faily limited. The post of Auditor, to which this individual was elected, of course, would be responsible for auditing the Township records and books and this would include an audit of the Planning Commission's books or records relating to same. You indicate that you have concluded and we have preliminarily indicated that this member of the Planning Commission who has recently been elected as Auditor should not participate in any audit of the Planning Commission's books and there should be no intermingling of activities of the member of the Planning Commission who is also the Auditor. You indicate that you have opined this individual should remove himself from any audit of the Township Planning Commission's books and that this should resolve the potential for any conflict in the above circumstances. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. William C. Stillwagon, Esquire January 18, 1984 Page 2 Discussion: As an Auditor who has been recently elected to this position within the Township, your client is a "public official" es that term is defined in the State Ethics Act. See Section 2 of the Ethics Act, 65 P.S. 402. As such his conduct as an Auditor must conform to Lhe requirements of the State Ethics Act. He must insure that his conduct presents neither a conflict nor the appearance of a conflict of the public trust as required by the Ethics Act. Previous rulings of the Commission indicate that as a general rule a public official may not review, approve, or inspect any activity in which he might be interested as an individual. For example,, the Commission has concluded that a zoning officer who is also a developer could not issue permits to himself. See Simmons, 79 -056. Similarly, the Commission has concluded that a developer who is also elected to be a Township Supervisor could not inspect or approve his own work as a developer. See Sowers, 80 -050. With respect to auditing, there are rulings that indicate that an Auditor may not audit the Township books where the spouse of the Auditor serves as a Supervisor. See Restivo, 80 -518 and Detweiler, 81 -648. Thus, in the circumstances that you outlined it is apparent that this individual as an elected Auditor, may not audit or approve (including the power to disapprove and cite in his audit report, for example) the books of the Township Planning Commission where he has served as a member. However, assuming that this Auditor can withdraw from participating in any audit of the Township's Planning Commission books, thereby avoiding any conflict of interest or appearance of a conflict of interest with the public trust, he may serve simultaneously in these two positions. Conclusion: The Ethics Act does not contain any provision which would hold that this individual cannot simultaneously serve as an elected Auditor and a member of the Planning Commission within the same Township. However, in his capacity as Auditor, this individual's conduct vis -a -vis the auditing of the • books of the Township Planning Commission should be governed by this Advice. 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. Mr. William C. Stillwagon, Esquire January 1R, 19R4 Page 3 SSC /rdp 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. Sincerely, Sandra S. Christianson General Counsel