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STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
February 26, 2018
To the Requester:
Mr. Ryan M. Tira, Esquire
McNerney, Page, Vanderlin & Hall
Dear Mr. Tira:
FACSIMILE: 717-787-0806
WEBSITE: www.ethics.oa.aov
18-506
This responds to your letter dated December 20, 2017, by which you requested
an advisory from the Pennsylvania State Ethics Commission ("Commission").
Issue. Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65
P—a—TS. § 1101 et seg., would impose prohibitions or restrictions upon an individual with
regard to performing the duties of his newly -elected position as a township auditor,
where: (1) the individual's father is a su ervisor for the township; (2) the individual's
father is not employed by the township; (3Me township board of supervisors appoints a
certified public accountant to perform the annual audit of the township accounts; and 4)
the duties of the elected township auditors are limited to setting the compensation or
township supervisors who are employed by the township and the discretionary auditing
of the records of the magisterial district judge to determine the amount of fines and
costs paid over or due to the township.
Facts: You have been authorized by Tristan Scott ("Mr. Scott") to request an
advisory from the Commission on his behalf. You have submitted facts that may be
fairly summarized as follows.
Mr. Scott was recently elected as an Auditor for Mahoning Township
("Township"), Montour County, Pennsylvania, for a term of office beginning on January
2, 2018.
The Township is governed by a five -Member Board of Supervisors. Pursuant to
Section 65917(b) of the Second Class Township Code, 53 P.S. § 65917(b), the
Township Board of Supervisors appoints a certified public accountant to perform the
annual audit of the Township accounts. Under Section 65917(c) of the Second Class
Township Code, 53 P.S. § 65917(c), when a certified public accountant is appointed by
the Township Board of Supervisors to perform the annual audit, the elected Township
Auditors shall not audit, settle, or adjust the Township accounts but shall perform the
other duties of the office of Township Auditor. You state that the duties of the elected
Township Auditors are limited to setting the compensation for Township Supervisors
Tira, 18-506
FeTruary 26, 2018
Page 2
who are employed by the Township and the discretionary auditing of the records of the
magisterial district judge to determine the amount of fines and costs paid over or due to
the Township.
In November 2017, Mr. Scott's father, T.S. Scott, was reelected as a Township
Supervisor. Although at some point in time Mr. Scott's father was approved to work as
a Township roadmaster, he has not performed any duties for the Township as a
roadmaster or received any compensation as a roadmaster. You state that Mr. Scott's
father is not a Township employee and that he will not accept employment with the
Township or be appointed as a roadmaster for 2018.
Based upon the above submitted facts, the question that is presented is whether
the Ethics Act would impose prohibitions or restrictions upon Mr. Scott with regard to
performing the duties of his position as a Township Auditor.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a
defense to the extent the requester has truthfully discllosed all of the material facts.
As a Township Auditor, Mr. Scott is a public official subject to the provisions of
the Ethics Act.
Sections 1103(a) and 11030) of the Ethics Act provide:
§ 1103. Restricted activities
(a) Conflict of interest, --No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
0) Voting conflict. --Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his
interest as a public record in a written memorandum filed
with the person responsible for recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a
matter before it because the number of members of the body
required to abstain from voting under the provisions of this
section makes the majority or other legally required vote of
approval unattainable, then such members shall be
permitted to vote if disclosures are made as otherwise
provided herein. In the case of a three -member governing
bod of a political subdivision, where one member has
absained from voting as a result of a conflict of interest and
the remaining two members of the governing body have cast
opposing votes, the member who has abstained shall be
Tira, 18-506
February 26, 2018
Page 3
permitted to vote to break the tie vote if disclosure is made
as otherwise provided herein.
65 Pa.C.S. §§ 1103(a), 0).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows.
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
family or a business with which he or a member of his
immediate family is associated. The term does not include
an action having a de minimis economic impact or which
affects to the same degree a class consisting of the general
public or a subclass consisting of an Industrryy, occupation or
other group which includes the public official or public
employee, a member of his immediate family or a business
with which he or a member of his immediate family is
associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
"Immediate family." A parent, spouse, child, brother
or sister.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Acts definition of the term
"conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is
prohibited from using the authority of public office/employment or confidential
information received %holding such a public position for the private pecuniary benefit
of the public officiallpic empoyee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated.
In each instance of a conflict of interest, the public officiallpublic employee would
be required to abstain from participation. The abstention requirement would not be
limited merely to voting, but would extend to any use of authority of office including, but
not limited to, discussing, conferring with others, and lobbying fora articular result.
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
co— ill ct, Section 11030) of the Ethics Act would require the public official/public
employee to abstain and to publicly disclose the abstention and reasons for same, both
orally and by filing a written memorandum to that effect with the person recording the
minutes.
Per the Pennsyylvania Supreme Court's decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 11 03 a o t e
Ethics Act, a public official/public employee:
Tira, 18-506
February 26, 2018
Page 4
... must act in such a way as to put his office/public position]
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part
of the [public official/public employee] of the potential
pecuniary benefit as well as the motivation to obtain that
benefit for himself.
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, a public official/public employee "must be consciously aware of a private pecuniary
benefit for himself, his family, or his business, and then must take action in the form of
one or more specific steps to attain that benefit." Id., 610 Pa. at 528, 22 A.3d at 231.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §
1103(b), (c), provide in part that no person shalloffer or give to a public official/pubic
employee anything of monetary value and no public official/public employee shall solicit
or accept anything of monetary value based upon the understanding that the vote,
official action, or judgment of the public official/public employee would be influenced
thereby. Reference is made to these provisions of the law not to imply that there has
been or will be any transgression thereof but merely to provide a complete response to
the question presented.
Having established the above general principles, you are advised as follows.
Mr. Scott's father is a member of his "immediate family" as that term is defined in
the Ethics Act. Mr. Scott would not have a conflict of interest under Section 1103(a) of
the Ethics Act as to discussion(s), vote(s), and/or other official action(s) of the Township
Board of Auditors unless: (1) he would be consciously aware of a private pecuniary
benefit for himself, a member of his immediate family such as his father, or a business
with which he or a member of his immediate family is associated; (2) his action(s) would
constitute one or more specific steps to attain that benefit; an (3) neither of the
statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the
Ethics Act, 65 Pa.C.S. § 1102, would be applicable.
As noted above, in each instance of a conflict of interest, Mr. Scott would be
required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 11030) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
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 in that they do not involve an
interpretation of the Ethics Act. Specifically not addressed herein is the applicability of
the Second Class Township Code.
Conclusion: Based upon the submitted facts that: (1) Tristan Scott ("Mr. Scott")
was recently elected as an Auditor for Mahoning Township ("Township'), Montour
County, Pennsylvania, for a term of office beginning on January 2, 2018; the
Townshi is ggoverned by a five -Member Board of Supervisors; (3) pursuant to �2)
ection
65917(b) of the Second Class Township Code, 53 P.S. § 65917(b), the Township Board
of Su ervisors appoints a certified public accountant to perform thhe annual audit of the
Townshi accounts, (4) under Section 65917(c) of the Second Class Township Code,
53 P.S. § 65917(c), when the Township Board of Supervisors appoints a certified public
accountant to perform the annual audit, the elected Township Auditors shall not audit,
settle, or adjust the Township accounts but shall perform the other duties of the office of
Township Auditor; (5) the duties of the elected Township Auditors are limited to setting
the compensation for Township Supervisors who are employed by the Township and
Tira, 18-506
February 26, 2018
Page 5
the discretionary auditing of the records of the magisterial district judge to determine the
amount of fines and costs paid over or due to the Township; (6) in November 2017, Mr.
Scott's father, T.S. Scott, was reelected as a Township Supervisor; (7) although at
some point in time Mr. Scott's father was approved to work as a Township roadmaster,
he has not performed any duties for the Township as a roadmaster or received any
conppensation as a roadmaster; and (8) Mr. Scott's father is not a Township employee,
and he will not accept employment with the Township or be appointed as a roadmaster
for 2018, you are advised as follows.
As a Township Auditor, Mr. Scott is a public official subject to the provisions of
the Public Official and Employee Ethics Act "Ethics Act"), 65 Pa.C.S. § 1101 et sew.
Mr. Scott's father is a member of his "immediate family" as that term is definedin the
Ethics Act. Mr. Scott would not have a conflict of interest under Section 1103(a) of the
Ethics Act as to discussion(s), vote(s), and/or other official action(s) of the Township
Board of Auditors unless: (1) he would be consciously aware of a private pecuniary
benefit for himself, a member of his immediate family such as his father, or a business
with which he or a member of his immediate family is associated; (2) his action(s) would
constitute one or more specific steps to attain that benefit; and (3) neither of the
statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the
Ethics Act, 65 Pa.C.S. § 1102, would be applicable.
In each instance of a conflict of interest, Mr. Scott would be required to abstain
from participation, which would include voting unless one of the statutory exceptions of
Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure
requirements of Section 11030) of the Ethics Act would have to be satisfied in the event
of a voting conflict. Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writingg and must be actuallLf
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § f3.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717 787-0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerel ,
obin M. Hittie
Chief Counsel