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HomeMy WebLinkAbout81-648 DetweilerMr. Philip R. Detweiler Bresnan and Detweiler Suite 116 650 Blue Bell West P.O. Box B Blue Bell, PA 19422 Dear Mr. Detweiler: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 4, 1981 ADVICE OF COUNSEL RE: Township Supervisor, Spouse of Township Auditor; Potential Conflict of Interest 81 -648 This Advice responds to your letter of November 5, 1981 in which you, as Solicitor for Perkiomen Township, request an opinion from the State Ethics Commission. Issue: You ask whether a spouse of the township supervisor may serve as township auditor without violating the Ethics Act. Facts: Five supervisors and three auditors serve Perkiomen Township. The Supervisors are responsible for the general supervision of the affairs of the township, meeting monthly for the transaction of business and maintaining books and records of its proceedings. 53 P.S. Section 65510 et seq. Township auditors meet annually and audit the accounts of the supervisiors, superintendents, roadmasters, treasurer and tax collector of the township. The auditors also fix the compensation, for the current year, of supervisors acting as superintendents, roadmasters or laborers. Two auditors shall constitute a quorum. 53 P.S. Section 65545 et seq. Discussion: In their capacity as public officials, town- ship auditors are subject to the provisions and restrictions established by the State Ethics Act. 65 P.S. Section 401 State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Philip R. Detweiler December 4, 1981 Page 2 et seq. Section 3 of the Act lists particular types of restricted activities, in which public officials must not participate. The appearance of a conflict of interest - as well as an acutal conflict - must be avoided in order to enforce the purposes of the Act. Section 3(a) states: "No public official ... shall use his public office or any confidential information received through his holding public office to obtain finan- cial 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) Service as a township auditor in a township where his or her spouse is a supervisor presents the appearance of a conflict of interest. The auditor will review annually accounts, books and records which were prepared in part by the auditor's spouse. Also, should the supervisor- spouse act as a super- intendent, roadmaster, or laborer, the auditor would be responsible for fixing his or her compensation. Because two auditors constitute a quorum, however, the auditor could theoretically absolve the conflict, and thus adhere to the provisions of the Ethics Act, without resigning his or her position. In order to do so, the auditor would have to abstain from voting and /or participation in any review involving action by the township supervisors. The auditor would also have to abstain from any decision as to compensation for superintendents, roadmasters or laborers, should his or her spouse act in any of those capacities. This appears to preclude the auditor from acting in a significant number of substantive decisions. Also, should one of the other two auditors be absent from the annual meeting, or be unable to participate in one of the decisions from which the auditor - spouse must abstain, a detrimental and problematic barrier is presented. Although the barrier would occur in rare situations, the chance of its occurring Mr. Philip. R. Detweiler December 4, 1981 Page 3 is nevertheless a real one. You must consider this effect when you evaluate the restrictions presented by the Ethics Act. In effect, we find that a spouse of a Supervisor may not be an auditor for the books of his /her spouse - Township Supervisor. Restivo, 80 -518. Conclusion: The spousal relationship between township auditor and township supervisor presents the appearance of a conflict of interest as anticipated by Section 1 in relation to Section 3(a) of the Ethics Act. Should the auditor continue to act in that office, he or she must abstain from participation in decisions invol- ving the township supervisors, so long as the auditor's spouse serves as one of the supervisors. This would include the annual accounting of the township records and, if the spouse serves as superintendent, roadmaster, or laborer, any decisions as to compensation for the relevant office. This effectively requires that the Auditor may not be the spouse of the Township Supervisor. 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 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 /lma 2838 Sincerely, Sandra S. Christianson General Counsel