HomeMy WebLinkAbout87-645 BuppMs. Dorothy R. Bupp
Box 330, R. D. #1
Harmony, PA 16037
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
December 21, 1987
ADVICE OF COUNSEL
87 -645
Re: Conflict of Interest, Township Auditor, Township Secretary Daughter
Dear Ms. Bupp:
This responds to your letter of November 20, 1987, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether the State Ethics Act presents any prohibition upon you
as a township auditor relative to performing audit functions at the township
office when your daughter serves as township secretary.
Facts: You state that you are one of the three recently elected auditors in
Lancaster Township, Butler County, wherein your daughter serves as secretary
to the township. You have advised that your daughter is 38 years old and is
out of the household. You further state that a local bank is the township
treasurer and that all checks must be co- signed by two of the three
supervisors in the township. You then ask what restrictions the Ethics Act
would impose upon you in performing your audit functions at the township due
to the fact that your daughter serves as township secretary.
Discussion: As a township auditor for Lancaster Township, Butler County, you
are a "public official" as that term is defined in the Ethics Act. 65 P.S.
§402; 51 Pa. Code §1.1 . As such, you are subject to the provisions of the
Ethics Act and the restrictions therein are applicable to you.
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).
Ms. Dorothy R. Bupp
December 21, 1987
Page 2
Section 3(a) basically provides that a public official may not use his
public office or confidential information to obtain a financial gain other
than compensation as provided for by law for himself or a member of his
immediate family. Under this provision, the Ethics Commission has determined
that the use of office by a public official to obtain a gain or benefit for
himself or a member of his immediate family which is not provided for in law
constitutes a "financial gain other than compensation provided for by law."
See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also
Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987).
Thus, under this provision, you may not use your public position to secure any
financial gain for yourself or your immediate family which is not provided for
in law.
Section 2 of the Ethics Act provides:
Section 2. Definitions.
"Immediate family." A spouse residing in the person's
household and minor dependent children. 65 P.S. 402.
In the instant situation, since your daughter is not a minor dependent
child, she i s. not within the definition of immediate family as that term is
defined in the Ethics Act.
Accordingly, there is no prohibition under Section 3(a) of the Ethics Act
upon you as a township auditor in performing your auditing functions at the
township office where your daughter is township secretary.
Lastly, the propriety of your proposed conduct has only addressed under
the Ethics Act; the applicability of any other statute, code, ordinance,
regulation or code of conduct other than the Ethics Act has not been
addressed. Specifically, not addressed in this advice is whether the Township
Code would impose any restrictions upon you. Advice regarding the propriety
of your activities under the Township Code must be addressed by the solicitor
since that would not involve any interpretation of the State Ethics Act.
Conclusion: As a township auditor for Lancaster Township, Butler County, you
are a "public official" subject to the provisions of the Ethics Act. Since
your daughter who serves as township secretary is not a minor dependent child,
she is not a member of your "immediate family" as that term is defined in the
Ethics Act; accordingly, the Ethics Act would not impose any prohibition upon
you in performing your auditing function at the township office where your
daughter serves as township secretary. Lastly, your proposed conduct has only
been considered under the Ethics Act but the applicability of any other
statute, code, ordinance, regulation, or other code of conduct has not been
considered.
Ms. Dorothy R. Bupp
December 21, 1987
Page 3
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 will be scheduled and a formal
Opinion from the Commission w i l l 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