HomeMy WebLinkAbout88-510 WassCarl G. Wass, Esquire
3631 North Front Street
Harrisburg, PA 17110
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
February 9, 1988
88 -510
Re: Conflict of Interest, Township Supervisor, Spouse as Secretary to
Planning Commission
Dear Mr. Wass:
This responds to your letter of January 8, 1988, in which you requested
advice from the State Ethics Commission.
Issue: Whether the State Ethics Act imposes any prohibition or restrictions
upon a township supervisor whose spouse is the secretary to the planning
commission, the governing body of which is the township Board of Supervisors.
Facts: You state that you are the solicitor for West Hanover Township wherein
the newly elected supervisor is the husband of the secretary to the West
Hanover Township Planning Commission. You note that the planning commission
reviews plans of subdivisions for the West Hanover Township and makes
recommendations to the Board of Supervisors. You further state that the
secretary has no voice in the deliberations of the planning commission and
that her function is limited to that of a note -taker and transcriber of the
notes or minutes of the meetings. You further state that when the subject of
the compensation for the secretary to the planning commission came before the
Board of Supervisors, the secretary's husband /supervisor abstained from voting
on the matter. You note, however, that a question has been raised as a
possible conflict of interest regarding the continued employment of the wife
as secretary to the planning commission when her husband has been elected as
township supervisor. You conclude by requesting advice from the State Ethics
Commission as to the propriety of a township supervisor serving on the Board
when his wife is secretary to the planning commission of which the township
Board is the governing body.
Discussion: As a township supervisor for West Hanover Township, the
individual is a "public official" as that term is defined under the State
Ethics Act. 65 P.S. §402. Volpe Order, No. 579 -R. As such, his conduct is
subject to the provisions of the Ethics Act.
Carl G. Wass, Esquire
February 9, 1988
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 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."
These determinations have been appealed to the Commonwealth Court of
Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon
v. State Ethics Commission, 77 Pa. Comm. 529 (1983). See also Yocabet v.
State Ethics Commission, Pa. Comm. , 531 A.2d 536 (1987). Of course,
under this provision, a public official may not use his public position to
secure any financial gain for himself or his immediate family unless it is
provided for by law. Domalakes Opinion, 85 -010.
The above restrictions of Section 3(a) of the Ethics Act apply not only
to a public official, such as a township supervisor, but also as to a member
of his immediate family. The term "immediate family" is defined under the
Ethics Act as follows:
Section 2. Definitions.
"Immediate family." A spouse residing in the person's
household and minor dependent children. 65 P.S. 402.
The wife of the township supervisor is, of course, within the definition of
immediate family. Therefore, under Section 3(a) of the Ethics Act, the
township supervisor could not use his office through such activities as
nominating, voting, l obbyi ng or participating in matters which would result in
a gain or benefit to his wife. Thus, in Rockovich, 356 -R, the Ethics
Commission found that a mayor of a borough violated Section 3(a), as well as
Section 3(c) of the Ethics Act, when he voted to appoint his wife as building
inspector and also voted against limiting her salary. Therefore, under
Section 3(a) of the Ethics Act, although there is no per se prohibition to a
public official serving as township supervisor at the same time that his wife
serves as a secretary to a planning commission of which the township is the
governing body, the Ethics Act would restrict the township supervisor from
participating in any matters relating to his wife as secretary to the planning
commission.
Carl G. Wass, Esquire
February 9, 1988
Page 3
In addition to the foregoing provision of law, the State Ethics
Commission may address other areas of possible conflicts of interest. 65 P.S.
§403(d). The parameters of the types of activities encompassed by this
provision of law may generally be determined by reviewing the purpose and
intent of the Ethics Act. Under Section 3(d) of the Ethics Act, the township
supervisor may not vote or participate in any matter that relates to his wife
as secretary to the planning commission. Further, whenever any matter comes
up concerning his wife, he must abstain and note his abstention of public
record together with the reason for his abstention.
Lastly, the propriety of the proposed conduct has only been addressed
under the Ethics Act; the applicability of any other statute, code, ordinance,
regulation or other code of conduct other than the Ethics Act has not been
considered.
Conclusion: As a supervisor for West Hanover Township, the supervisor is a
public official subject to the provisions of the Ethics Act. Section 3(a) of
the Ethics Act imposes no per se prohibition of an individual serving as
township supervisor when his wife is secretary to a planning commission, the
governing body of which is the Township Board of Supervisors. Under Sections
3(a) and 3(d) of the Ethics Act, the supervisor may not participate in any
matter relating to his wife as secretary to the planning commission. Further,
he must note his abstention of public record together with the reason for his
abstention. Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Act.
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 crimi nal proceedi ng, 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 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,
1 0.
Vincent J.' Dopko
General Counsel