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HomeMy WebLinkAbout81-526 PotashCharles Potash Wisler, Pearlstine, Talone, Craig & Garrity 515 Swede Street Norristown, PA 19401 RE: Abstention STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 March 12, 1981 ADVICE OF COUNSEL 81 -526 Clifford N. Kells Mill Hill Road Box 185, RD #1 East Greenville, PA 18041 Dear Attorney Potash and Mr. Kells: This responds to the communications received by this office, on the same subject, submitted by Attorney Potash as Solicitor for Upper Perkiomen School District (February 13, 1981) and Clifford Kells (February 2, 1981). Issue: May an elected member of the School Board participate in discussions and vote on the issue of future renumeration of an elected tax collector where the tax collector is the wife of the member of the School Board? Facts: Mr. Kells is an elected member of the Upper Perkiomen School District. Mrs. Kells is currently servings as tax collector and is or will be a candidate for re- election to the post of tax collector. The salary of the tax collector is set by the School Board. Mr. Potash, as Solicitor issued opinions on January 8 and January 4, 1981 indicating that a Board member such as Mr. Kells could not particiapte in discussions or votes on the issue of renumeration to his wife as tax collector. Discussion: As an elected official a School Board Director is a "public official" within the definition of that term in the Ethics Act. 65 P.S. 402. As a public official Mr. Kells must abide by the requirements of the Ethics Act, including avoiding actual conflicts and the appearance of such conflicts. Section 1 of the Ethics Act. 65 P.S. 401. The Commission has held on many occassions that it would constitute an appearance of a conflict of interest for a public official to discuss or vote on a matter which would enure to Charles Potash, Esquire Clifford N. Kells March 12, 1981 Page 2 his own benefit, the benefit of his immediate family or a business with which he is associated. The reasons for absten- tion must be made part of the public record. Kilmer, 79 -037; Sowers, 80 -050. In the case of Mr. Kells, it is clear that the decision on the renumeration of the tax collector, his wife, would enure to the benefit of a member of his "immediate family" as that term is defined in the Ethics Act. See Section 2, 65 P.S. 402. Accordingly, it would constitute the appearance of a conflict of interest for Mr. Kells to participate in the discussion and decision, including voting, on this subject. We wish to clarify, by this Advice, any informal communi- cations or misunderstandings as to this question. We remind all concerned that the Commission can issue bindin advice only through written opinions or advices, such as t is one. In any event, the Commission respects the written opinion issued in this matter by Solicitor Potash. We admonish any elected official to follow the properly issued advice of the Solicitor charged with the responsibility to render such advice. We will, of course, continue to exercise our responsibility to issue advice, upon request, under Section 9 of the Ethics Act, 65 P.S. 409. This role and responsibility, however, does not discharge an official from the obligation of following the advice of his own Solicitor. While the opinion of the Commission may not in every case be identical to that of any given Solicitor, in this case in particular, where these opinions are consistent, there should be compliance with their directives. Conclusion: An elected School Board member is a public official within the purview of the Ethics Act. As such that official must avoid even the apperance of a conflict of interest. In the case in question, this entails abstaining from participating, including voting on the question and decision of renumeration for the tax collector who is the wife of the School Board member. 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. Charles Potash, Esquire Clifford N. Kells March 12, 1981 Page 3 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /rdp Sinocerely, dra S. C./ istianson General Counsel