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HomeMy WebLinkAbout87-540 VeithWilliam A. Veith 9016 W. Neuberger Rd. Fairview, PA 16415 Dear Mr. Veith: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 3, 1987 ADVICE OF COUNSEL Re: Township Supervisor, Spouse, Township Auditor 87 -540 This responds to your letter of March 28, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether any restrictions are placed upon a township supervisor where the supervisor's spouse serves as a township auditor. Facts: You have indicated that you are currently a candidate for the office of Township Supervisor in McKean Township, Pennsylvania. You are running for this position and will be on the ballot during the May 1987 primary. You further advise that your wife, Nancy L. Veith, has held the position of Township Auditor in McKean Township since 1983. You have indicated that you are concerned that potential conflict of interest may develop in the event that you are successful in your bid for the office of township supervisor. As such, you have requested the advice of the State Ethics Commission in order to determine what, if any, restrictions are imposed on you within the purview of the State Ethics Act. Discussion: As a township supervisor in a township of the second class, should you be elected to that position, you would be a public official within the purview of the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of that law. Sowers, 80 -050; Welz, 86 -001. Similarly, your spouse, as a township auditor, would also be a public official within the purview of the Act. Nallo, 79 -004. Initially, it should be noted that the State Ethics Act presents no prohibitions upon your candidacy for the office of township supervisor even though your spouse may be serving in an official position in the township. As an candidate for public office, you, of course, must comply with the Statement of Financial Interest filing requirements of the State Ethics Act. 65 P.S. §404. Other than as noted above, however, the Act would present no absolute prohibition upon your candidacy. William A. Veith April 3, 1987 Page 2 In relation to the restrictions that will be imposed upon you under the purview of the State Ethics Act, should you be successful in you attempt at obtaining the position of township supervisor, this Commission has reviewed similar issues in the past. 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). In addition to the foregoing, the Ethics Commission may also address areas of potential conflicts of interest. 65 P.S. §403(d). Generally, the parameters of the types of activites encompassed by this provision of law, are determined through a review of the intent and purpose of the State Ethics Act. The law was promulgated in order to ensure the public that the financial interests of their officials do not conflict with the public trust. 65 P.S. §401. Such a conflict of interest would develop anytime where a public official or employee attempts to serve one or more interests that are adverse. With respect to the auditor /supervisor relationship, the Ethics Act contains no provision indicating that it is inherently incompatible for the a person to serve as an auditor in the same township with that individual's spouse serves as a supervisor. Township auditors, however, are in part responsible for auditing and settling the accounts of the township supervisors, superintendents, roadmasters, treasurer, and tax collectors. 53 P.S. §65542. The auditors are authorized to surcharge any elected or appointed official whose action has contributed to the financial loss of the township. Additionally, the township auditors are empowered to fix the salary of the township supervisors who are serving in authorized positions of employment within the township. Based upon the aforementioned powers and duties and based upon the provisions of the State Ethics Act cited above, you must ensure that your conduct does not present a conflict of interest with the public trust as required by the State Ethics Act. Additionally, your spouse, as a township auditor, must similarly ensure that her activities do not conflict with the public trust. Previous rulings of the Commission indicate as a general rule, that a public official may not review, approve, or inspect any activity in which he or a member of his immediate family may be interested as an individual. For example, the Commission has concluded that a zoning officer who is also a developer could not issued permits to himself. Simmons, 79 -056. Similary, the Commission has concluded that a developer who is also elected to be a township supervisor could not inspect or improve his own work as a developer. Sowers, 80 -050. William A. Veith April 3, 1987 Page 3 With respect to auditing, these rulings indicate that an auditor should not audit the books and accounts of the board of supervisors where the spouse of the order serves as a supervisor. Restivo, 80 -518; Detweiler, 81 -684; Wheeler /Williams, 85 -518. In your wife's capacity as an auditor, she must annualy review the accounts, books and records which were presented, in part, and reflect the actions for which the township supervisors are responsible. As a member of the township Board of Supervisors you would be one of the individuals conducting activities for which your wife would be auditing. She is in power to surcharge these officials, if in her view, she found that the actions contributed to a financial loss by the township. In this respect, any action that she would take or fail to take, surely at a minimum, would be a conflict of interest. However, because two auditors, according to our reading of the Second Class Township Code can constitute a quorum, she could resolve any conflict by removing herself specifically from situations where your actions as a township supervisor are involved. Also as a reminder, she should not participate in the fixing of compensation paid to you. Similarly, you, as a township supervisor, should not participate in any matter that relates to the township Board of Auditors. For example, if the township supervisors must decide whether to allocate funds for a project to be conducted by the auditors, you should abstain from participating therein. Other potential conflicts of interest may be addressed as they arise. In this respect you may wish to seek the further advice of this Commission in the event that you are successful in your attempt to obtain the office of township supervisor. Conclusion: The State Ethics Act presents no per se prohibiton upon your candidacy for the office of township supervisor in the same municipality where your wife serves as township.auditor. As public officials, both you and your wife must conform yourself to the requirements 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, providinj the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This getter is a public record and will be made available as such. William A. Veith April 3, 1987 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 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. Sin ohn J. •ntino Acting General Counsel