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HomeMy WebLinkAbout96-532 WatersCharles A. Waters, Esquire Steckel & Stopp 4331 Route 309 PO Box 216 Schnecksville, PA 18078 -0216 Re: Conflict, Public Official /Employee, Auditor, Township employee, Road Crew Worker. Dear Mr. Waters: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 29, 1996 96 -532 This responds to your letter of February 27, 1996 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 who is also a Township road crew worker with regard to participating in the Township audit and /or the setting of compensation for Township Supervisors. Facts: As Solicitor for the Board of Supervisors of Weisenberg Township, a township of the second class located in Lehigh County, Pennsylvania, you are seeking an advisory opinion on behalf of Mr. Forrest D. Kistler (Kistler), who is a Weisenberg Township Auditor. Kistler is currently serving a six year term as Auditor, which term began on January 1, 1996. Kistler has served as a Township Auditor for over forty years. Kistler is also an employee of Weisenberg Township, having been hired in April, 1995 as a full -time township road crew worker. The Township Roads Department consists of one working township supervisor /road foreman who supervises four full -time road crew workers. You pose the following questions as to Kistler's future conduct: 1. May Kistler participate in the auditing of the general financial affairs of Weisenberg Township? 2. May Kistler participate in auditing the financial affairs of Weisenberg Township as they specifically relate to the township road department? 3. May Kistler participate in auditing the Weisenberg Township records dealing with his compensation as an employee of the township? Waters /Kistler, 96 -532 March 29, 1996 Page 2 4. May Kistler participate in setting the compensation of Weisenberg Township Supervisors as contemplated and authorized by the Second Class Township Code? Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. §§407(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 burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As an Auditor for Weisenberg Township, Kistler is a public official as that term is defined under the Ethics Law, and hence he is 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. 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 Waters /Kistler, 96 -532 March 29, 1996 Page 3 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. 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. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, there appears to be no statutorily declared incompatibility which would preclude a second class township auditor from being employed by the township which he serves. However, pursuant to Section 3(a) of the Ethics Law, a conflict of interest would arise in each instance where the use of Kistler's authority of office or the use of confidential information which he has access to by being in his office would result in a private pecuniary benefit for himself. Waters /Kistler, 96 -532 March 29, 1996 Page 4 Additionally, under the facts which have been submitted, Kistler is one of the four full -time road crew workers who are supervised by the Township Supervisor /Road Foreman. It is clear that at least this particular Supervisor would have direct supervision over Kistler as a Township employee. Thus, in this case, conflicts will also arise not only as to matters where Kistler himself would derive a private pecuniary benefit, but also in matters where his boss, the Township Supervisor /Road Foreman, or any other Supervisor who makes decisions as to Kistler's employment, would derive a private pecuniary benefit. Bassi, Opinion 86- 007 -R; Woodrinq, Opinion 90 -001. Kistler could not participate in auditing those portions of the books and accounts of the Township which would involve the receipt of a pecuniary benefit by him, his boss, or any other Supervisor who makes decisions as to Kistler's employment. In each instance of a conflict of interest, Kistler would be required to abstain fully and to publicly announce his abstention and the reasons for same, both orally at the public meeting and in a written memorandum filed with the person recording the minutes. Having set forth the above, your specific inquiries shall now be considered. In response to your first specific inquiry, you are advised that Kistler may participate in auditing the general financial affairs of Weisenberg Township only to the extent that he can do so without participating in matters pertaining to himself, his boss, the Township Supervisor /Road Foreman, and /or any other Supervisor who makes decisions as to Kistler's employment. To the extent such matters can be segregated so that Kistler may abstain and satisfy the disclosure requirements of Section 3(j) when he has a conflict, Kistler may participate as to the other matters /individuals which do not present a conflict. As for your second specific inquiry, likewise, Kistler may participate in auditing the financial affairs of Weisenberg Township as they relate to the Township Road Department only to the extent that he can do so without participating in matters that would result in a private pecuniary benefit to himself, his boss, the Township Supervisor /Road Foreman, and /or any other Supervisor who makes decisions as to Kistler's employment. As for your third specific inquiry, Kistler may not participate in auditing the Weisenberg Township records which deal with his own compensation as an employee of the Township, or the compensation of his boss, the Township Supervisor /Road Foreman, or any other Supervisor who makes decisions as to Kistler's employment. Finally, as for your fourth specific inquiry, Kistler may not participate in setting the compensation of his boss, the Township Supervisor /Road Foreman, and /or any other Supervisor who makes decisions as to Kistler's employment with the Township. 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 Second Class Township Code. Conclusion: As an Auditor for Weisenberg Township, Forrest D. Kistler (Kistler) is a public official subject to the provisions of the Ethics Law. Given that Kistler is employed as a road crew worker in the Township Roads Department, where he is Waters /Kistler, 96 -532 March 29, 1996 Page 5 subject to the supervision of a working Township Supervisor /Road Foreman, pursuant to Section 3(a) of the Ethics Law, Kistler would have a conflict of interest in any matter before him as a Township Auditor where the use of the authority of his public office or the use of confidential information to which he has access as a result of being a Township Auditor, would result in a private pecuniary benefit for himself, his boss, the Township Supervisor /Road Foreman, or any other Supervisor who makes decisions as to Kistler's employment. In each instance of a conflict of interest, Kistler would be required to abstain fully and to satisfy the disclosure requirements of Section 3(j) as set forth above. Kistler may participate in auditing the general financial affairs of the Township and specifically the records pertaining to the Township Roads Department to the extent that he can do so without participating in matters that would result in a private pecuniary benefit to himself, his boss, the Township Supervisor /Road Foreman, or any other Supervisor who makes decisions as to Kistler's employment. Kistler may not participate in auditing the Township records which deal with his own compensation as an employee of the Township, or compensation to his boss, the Township Supervisor /Road Foreman, or any other Supervisor who makes decisions as to Kistler's employment. Kistler may not participate in setting the compensation of his boss, the Township Supervisor /Road Foreman, or any other Supervisor who makes decisions as to Kistler's employment with the Township. 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 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 writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13. 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. erely, Vincent Dopko Chief Counsel