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HomeMy WebLinkAbout93-589 HookEdward E. Hook R.D. #1, Box 47 Glenville Road Cochranville, PA 19330 Dear Mr. Hook: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 2, 1993 93 -589 Re: Conflict, Public Official /Employee, Candidate for Township Supervisor, Immediate Family, Spouse, Candidate for Township Tax Collector. This responds to your letter of July 14, 1993 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 candidate for township supervisor when that candidate's spouse is a candidate for township tax collector. Facts: You are the Republican candidate for Supervisor of Upper Oxford Township, Chester County. In the primary election, you were unopposed on the Republican ticket and there were no Democratic candidates. Your wife was the successful write -in Democratic candidate for Tax Collector of Upper Oxford Township. You were informed that there is no interaction between offices. You state that after the primary election, the Chairman of the Board of Supervisors suggested that you verify with this Commission whether you and your wife could hold the respective offices at the same time. Based on the above, you request an advisory from the State Ethics Commission. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. SS407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the August 2, 1993 Page 2 burden of the requestor to truthfully disclose all of the materials facts relevant to the inquiry. 65 P.S. 55407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Supervisor for Upper Oxford Township, Chester County, you will become a public official as that term is defined under the Ethics Law, and hence you will be subject to the provisions of that law. Section 3(a) of the Ethics Law provides: 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 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. August 2, 1993 Page 3 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 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 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 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) from conflict under the Ethics Law, then in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. August 2, 1993 Page 4 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 anything 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 been or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, a public official /public employee under Section 3(a) of the Ethics Law is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. There is no specific prohibition in the Ethics Law which would preclude you from holding the position as Supervisor for Upper Oxford Township merely because your wife is Tax Collector for that same Township. However, it is clear that you would be subject to the restriction of the Ethics Law such that if a conflict of interest, as defined above, would arise as to a particular matter, you would be required to abstain from any participation in that matter and must observe the disclosure requirements of Section 3(j) set forth above. You would have a conflict of interest as to any matter before you in your capacity as a Township Supervisor where the use of the authority of your public employment or confidential information received by holding your public position would result in a private pecuniary benefit for you, your wife, or any other member of your immediate, or a business with which you or a member of your immediate family is associated. An example of such a conflict would involve the consideration by the Board of Supervisors as to the amount or rate of compensation which the Tax Collector would receive for tax collection. 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. Specifically not addressed herein is the applicability of the Township Code. Conclusion: As Township Supervisor for Upper Oxford Township, Chester County, you will be a public official subject to the provisions of the Ethics Law. The Ethics Law would not preclude August 2, 1993 Page 5 you from seeking and holding the office of Township Supervisor while your wife holds the position of Tax Collector for the same township. As a public official, you are subject to the restrictions of Section 3(a) of the Ethics Law and therefore, you may not use the authority of public office or confidential information obtained through holding such public office for your own private pecuniary benefit, or the private pecuniary benefit of a member of your immediate family, or a business with which you or a member of your immediate family is associated. In each instance of a conflict of interest, the disclosure requirements of Section 3(j) as set forth above must be fully satisfied. 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. such. This letter is a public record and will be made available as 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 %13.2(h). cerely, Vincent J. opko Chief Counsel