Loading...
HomeMy WebLinkAbout91-518 HardtMs. Joy A. Hardt Cedar Ridge Road Allison Park, PA 15101 Dear Ms. Hardt: STATE ETHICS COMMISSION t 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 27, 1991 Re: Conflict, Public Official, Auditor, Candidate, Township Manager, Voting, Salary. This responds to your letter of January 23, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a township auditor from participating in the responsibility of setting "reasonable compensation" for the township manager position when the auditor may be a candidate for the township manager position. Facts: As one of three elected auditors for the township of West Deer which is a Second Class Township, Home Rule Community in Allegheny County, you seek the advice of the State Ethics Commission. In the November election, a referendum was passed by the voters of the township to elect the township manager beginning with the 1991 election. The auditors have been charged with the responsibility of setting "reasonable compensation" for the township manager position. You indicate your belief that the compensation was to be officially set by February 10. One of the three elected auditors is running in the primary for the position of township manager and you are also considering running for the position. You state your belief that two of the three auditors may have a vested interest in the township manager position. You inquire with regard to the propriety of your potential candidacy for the township manager position while serving as an elected auditor charged with the responsibility of setting the compensation for that same position. Discussion: As an elected auditor for the home rule charter township of West Deer, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: 91 -518 Ms. Joy A. Hardt Page 2 Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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 industry, occupation or other group which includes the public official or public employee, a member or 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by Ms. Joy A. Hardt Page 3 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 body of a political subdivision, where one member has abstained 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 permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain as well as file a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s), then in that event participation is permissible provided the disclosure requirements noted above are followed. Before addressing your particular inquiry, it is initially noted that your inquiry may only be addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act may not be considered in that such would not involve an interpretation of the Ethics Law. Secondly, this advice is directed to your proposed conduct only and does not address the propriety of the proposed conduct of the other auditor who is seeking election to the township manager position. Section 7(10) and (11) of the Ethics Law limit the issuance of advisory opinions to persons or their authorized representatives who may seek advice relative to their own conduct. To the extent your inquiry relates to the conduct of some other public official, it is considered a third party request and as such cannot be addressed. Ms. Joy A. Hardt Page 4 In applying the provisions of Section 3(a) of the Ethics Law above to the instant matter, the restriction of Section 3(a) is that a public official may not use the authority of office or confidential information received through holding public office to obtain a private pecuniary benefit for himself., a member of his immediate family or a business with which he or a member of his immediate family is associated. In this case it is clear that your participation or voting to set the compensation for the township manager position would constitute a conflict of interest under the Ethics Law. Your participation or vote would be a use of the authority of your office. See, Krause, Advice 90 -530 at 2 -3. Furthermore, you would be using the authority of your office to set the compensation for the position which you hope to hold. If you are elected to the township manger position, your participation or vote as an auditor in setting the compensation for the township manger position would be a use of the authority of your office to obtain a private pecuniary gain for yourself. You would, in essence, have an impact upon fixing your own compensation. In this situation, you clearly must divest yourself from any participation in the township's actions in setting the compensation for the township manager position. In light of the above, Section 3(j) of the Ethics Law would require you to publicly announce and disclose the nature of your interests in a written memorandum filed with the secretary responsible for recording the minutes of the meeting of the township auditors. However, in the event that the remaining auditors split on their vote after your abstention or are unable to take any action on the matter because the number of auditors required to abstain from voting make the majority or other legally required vote of approval unattainable, then Section 3(j) would allow you to vote in either such instance provided the disclosure requirements of Section 3(j) outlined above are followed. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As an elected auditor for the home rule charter township of West Deer, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would preclude you as an auditor for a Second Class Township, Home Rule community from participating in any fashion or voting to set the salary of the township manager position when you are a candidate for the township manager position. Section 3(j) of the Ethics Law requires that you Ms. Joy A. Hardt Page 5 publicly announce and disclose at the next public meeting of the auditors the nature of your interest in a written memorandum filed with the secretary who keeps the minutes. In the event that a deadlock would occur due to your abstention or should the number of auditors required to abstain from voting under the provisions of Section 3(j) make the majority or other legally required vote of approval unattainable, Section 3(j) of the Ethics Law would allow you to vote provided you comply with the disclosure requirements of Section 3(j) as discussed above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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 will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent . Dopko, Chief Counsel