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HomeMy WebLinkAbout87-619 WiktorMr. R. J. Wiktor Supervisor R. D. #1, Box 362 Mineral Point, PA 15942 Dear Mr. Wiktor: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 October 20, 1987 ADVICE OF COUNSEL 87 - 619 Re: Conflict of Interest, Township Supervisor, Appointed Tax Collector, Niece This responds to the letter of September 24, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restriction upon you from voting for your niece to fill the unexpired term of a tax collector who resigned. Facts: You state that you are one of the three elected supervisors for Jackson Township, Cambria County. You further state that the elected tax collector has resigned and that it is your duty as one of the township supervisors to appoint a tax collector to complete the unexpired term of the prior tax collector. You state that your niece is a candidate for the appointment and ask whether it would be a conflict of interest for you to vote in favor of your niece to fill the unexpired term. Discussion: As a township supervisor for Jackson Township, Cambria County, you are considered a public official within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 51 Pa. Code §1.1. As such, 65 P.S. §402; Act and the restrictions therein a are s applicable t to youVlsions of the Ethics Mr. R. J. Wiktor October 20, 1987 Page 2 Section 3(a) of the Ethics Act provides: 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). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain financial gain other than compensation as provided for by law for himself or a member of his immediate family. Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Since immediate family is defined to only include a spouse or minor dependent child, the provision of Section 3(a) would not include your niece. Therefore, under Section 3(a) of the Ethics Act and the definition of "immediate family ", there is no prohibition upon your voting in favor of your niece for the unexpired term of tax collector since your niece is not encompassed within the definition of "immediate family." Section 3(b) of the Ethics Act provides: Section 3. Restricted activities. (b) 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 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). Mr. R. J. Wiktor October 20, 1987 Page 3 • Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which you must observe, you must neither offer nor accept anything of value on the understanding or with the intention that your official judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Although there is no prohibition under the Ethics Act, as previously noted, as to your voting in favor of your niece, the Commission has found the appearance of a conflict of interest in cases where a public official has voted in favor of a relative who was not within the definition of "immediate family." See Modrovich, No. 585. The Commission has referenced Section 3(d) of the Act to encompass the Preamble of the Ethics Act which relates to the intent and purpose of the Act; to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance of a conflict with the public trust. In light of the foregoing, although the Ethics Act does not prohibit you from voting in favor of your niece, the better practice would be to abstain so as to avoid even an appearance of a conflict of interest. Lastly, this Commission has only addressed your question under the Ethics Act; it has not addressed the question under any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act. Conclusion: As a township supervisor for Jackson Township, you are a public official subject to the provisions of the State Ethics Act. Since your niece is not a member of your "immediate family" as that term is defined in the Ethics Act, there is no prohibition upon you for voting for your niece for the unexpired term of tax collector although the better practice would be to abstain so as to avoid the appearance of a conflict of interest. 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. Mr. R. J. Wiktor October 20, 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. Sincerely, Vincent J. Dopko General Counsel