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HomeMy WebLinkAbout81-649 TomarLawrence I. Tomar, Esquire 37 South Main Street Yardley, PA 19067 Dear Mr. Tomar: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 15, 1981 ADVICE OF COUNSEL RE: Borough Council, Borough Treasurer 81 -649 This responds to your letter of November 19, 1981, in which you requested an opinion from the Ethics Commission. Issue: You requested advice as to whether a woman could serve as Borough Council President while her husband serves as Borough Treasurer, and whether the Ethics Act forbids the Treasurer from accepting $1,200 a year as compensation for his services. Facts: You informed us that Mary Ann Jackson is a recently elected Councilwoman in the Borough of Yardley. She is a possible candidate for the presidency of Borough Council. Mary Ann Jackson's husband, Robert, is now serving as Borough Treasurer. He was appointed to an indefinate term in May 1981 and receives yearly compensation of $1,200 in accord with 53 P.S. 46101. Mary Ann did not vote on Robert's appointment or compensation but if she becomes Council President she will be required by law to authorize all expenditures prior to disbursement by the Treasurer. Discussion: Initially we note that you inquired whether either of the Jacksons would violate 53 P.S. 46404 by Mr. Jackson's receipt of $1,200 yearly compensation. The juris- diction of the Ethics Commission is strictly limited by the State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Lawrence I. Tomar, Esquire December 15, 1981 Page 2 Ethics Act, 65 P.S. Section 401 et. seq. We cannot, therefore, discuss whether the Jacksons' official conduct would or would not violate any statute other than the Ethics Act. This Advice will address the impact the Ethics Act has on the facts you explained to us, any other statute will have to be interpreted by another agency or private counsel. The Ethics Act, 65 P.S. 401 et. seq., governs the conduct of public officials. The statutory definition of "public official" includes all elected officials in political subdivisions of the Commonwealth, 65 P.S. Section 402. Clearly, as an elected member of Borough Council Mary Ann Jackson is a public official within the meaning of the Ethics Act. The statute forbids conflicts of interest with the public trust. 65 P.S. Section 401. It is not a conflict of interest for Mary Ann Jackson to serve as Council President while Robert Jackson serves as Borough Treasurer. According to the decision of the Ethics Commission in Alfano, 80 -007, a conflict of interest exists when an individual represents two or more persons whose interests are adverse to each other. The Borough Council and Borough Treasurer do not have adverse interests. Mary Ann Jackson should avoid even the appearance of a conflict of interest by abstaining from voting on the appointment and compensation of the Borough Treasurer. Once the Treasurer is appointed and his compensation established Mary Ann Jackson may perform the routine ministerial act of approving expenditures before disburse- ment of same is performed by the Treasurer. You also inquired as to whether the Treasurer's receipt of a yearly salary of $1,200 violated Section 3(c) of the Ethics Act. Section 3(c) provides that No public official ... or a member of his immediate family ... shall enter into any contract valued at $500 or more with a governmental body unless the contract has been awarded through an open and public process. 65 P.S. 403(c). Lawrence I. Tomar, Esquire December 15, 1981 Page 3 You informed us that Borough Council set Robert Jackson's compensation, with his wife abstaining. Because Borough Council controlled Mr. Jacksons's appointment and his compensation, he was appointed in an open and public process. See Coon, 79 -016. Therefore, he may accept his yearly salary without violating Section 3(c) of the Act, 65 P.S. Section 403(c). You might further insure compliance with the "open and public" concept by announcing the Treasurer appointment is open, soliciting applications for the appointment, discussing the applications received and the appointment made at a public session where the wife - husband situation exists when the appointment must next be made. Conclusion: Mary Ann Jackson may serve as President of Borough Council at the same time that her husband, Robert, - serves as Borough Treasurer. There is no conflct of interest in a husband and wife holding these two separate offices. As a member of or President of Borough Council Mary Ann may approve routine expenditures prior to disbursement by the Treasurer. She must abstain from voting on matters relating to the appointment and compensation of the Treasurer. Although the Treasurer is compensated $1,200 per year for his duties, there is no violation of Section 3(c) of the statute. The appointment of the Treasurer and his compensation are controlled by vote of Borough Council in an open and public process. 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. Lawrence I. Tomar, Esquire December 15, 1981 Page 4 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 Si cerely, ndra S. Ch istianson General Consel