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HomeMy WebLinkAbout85-610 CourieSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 December 19, 1985 ADVICE OF rn11NSEL Ms. Charlotte A. Courie 85 -610 R.D. 2, Walker Road Canonsburg, PA 15317 Re: Conflict of Interest, Township Supervisor, Voting for Roadmaster Dear Ms. Courie: This responds to your letter of December 3, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether a township supervisor may participate in the election of the township roadmaster when that supervisor's spouse is employed on the township road crew. Facts: You have recently heen elected as a township supervisor for North Strahane Township..: Township supervisors are generally responsihle for the supervision of township affairs. 53 P.S. 65510. As part of their function, the hoard of supervisors are responsihle for dividing the township into one or more road districts and employing a superintendent for the entire township or a roadmaster for each district. Additionally, a township may employ other individuals to work on the township road crew. You indicate that you are not a candidate for this position. Generally, the township hoard of supervisors has elected a roadmaster from among the members of the board of supervisors as permitted in the township code. The supervisor so elected functions as a superintendent of the road crew and is the board of supervisor's management contact with the road crew. Said supervisor /roadmaster is responsihle for implementing instructions, directives and policies of the hoard of supervisors with respect to the road crew. You indicate that for the past ten years your husband has been employed by North Strahane Township as a member of its road crew. In 1977, he hecame the foremen of the road crew. You further advised, that the road employees are members of a union and that the township has entered into a collective bargaining agreement with that union. You now request the advice of the State Ethics Commission as to whether there would be any conflict of interest if you were to participate in the selection of the township roadmaster. Discussion: As a township supervisor, there is no doubt that you are a public official as that term is defined in the State Ethics Act and, therefore, suhject to the requirements of the Act. 65 P.S. 6402; Sowers, 80 -050. Ms. Charlotte Courie December 19, 1985 Page 2 Generally, the State Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within this provision of law, a public official may not use their township position in order to obtain a financial gain for themselves or a member of their immediate family. A member of ones immediate family is defined in the State Ethics Act as follows: Section 3. Restricted activities. Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Clearly, your husband is within this definition and, as such, you may not use your position or any confidential information obtained in that position in order to secure any financial gain for him. Thus, within the above provision of law, this Commission has, on prior occasions, held that you may not participate in any action that would benefit your husband. See Leete, 82 -005; Beck, 79 -018. Within the above prohibitions you may not participate in any matter that would fix the benefits or salary for your spouse. See Wheeler, 85 -518. In the event that your husband is a candidate for roadmaster, therefore, you must abstain completely from the appointment process. However, if your husband is not a candidate for roadmaster there would appear to be no prohibition upon your participation in the selection of a roadmaster by the township. Your attention is directed to Section 3(b) of the Ethics Act, which provides as follows: (h) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment Ms. Charlotte Courie December 19, 1985 Page 3 based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Of course, within this provision of the State Ethics Act, you may not make your decision regarding the position of roadmaster and who would be elected to that position, based upon any understanding that your decision is being influenced by any benefit that will inure to your husband. We make reference to this particular provision of law, not to imply that there has or will be any violation thereof, but merely to provide a complete response to your question. In addition to the foregoing provisions of law, the State Ethics Commission is authorized to address other areas of possible conflict. 65 P.S. §403(d). Generally, the Commission has determined that such a conflict may arise where the public official attempts to serve one or more interests that are adverse. See Alfano, 80 -007. The avoidance of such a conflict of interest between the public official's public duties and his personal financial interests was the intent that gave rise to the enactment of the State Ethics Act. See 65 P.S. 401. Thus, as a township official, if you are called upon to review or participate in any matter that would require you to review directly the particular work of your spouse, you should abstain from such participation. This is not to say that you are prohibited from giving general policy directions to the roadmaster for completion. You may not, however, take any action that would be specifically and directly related to your spouse. Finally, you have noted in your letter of request that the township employees are working pursuant to a collective bargaining agreement with the township. The Commission has addressed similar issues in the past and has determined that a public official may participate in the final vote on the adoption or ratification of a collective bargaining agreement that includes the public official's spouse so long as the public official has refrained and abstained from participating in the negotiations, discussions, and meetings regarding the collective bargaining agreement that is being reviewed for ratification. Additionally, the public official must refrain from participation in the agreement if the agreement affects his or her spouse in a manner different than other members of the bargaining unit. If the final agreement to be voted upon affects the official's spouse no more than any other member of the bargaining unit then the official may vote on the final ratification and adoption of the agreement. In the instant situation, we note that the agreement specifically sets forth a higher salary for the position of road foremen. In light of the fact that you have indicated that your husband holds this particular position, you would be prohibited from voting from the final adoption of the collective bargaining agreement because it appears to effect your husband in a manner different than that of other employees. Ms. Charlotte Courie December 19, 1985 Page 4 Conclusion: As a township supervisor you are a puhlic official as that term is defined in the State Ethics Act and subject to the requirements of the Act. While the State Ethics Act would not prohibit you from participating in the election of a township roadmaster, you may not participate in such matter if your husband is a candidate for that position. Additionally, as a township supervisor you are advised that you may not participate in any matter that directly affects or benefits your spouse. Your activities as a public official must be in conformity with the requirments of the State Ethics Act as set forth above. 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 w i l l 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. JJC /sfb Sincerely, ohn J. General •unsel