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HomeMy WebLinkAbout96-604 JohnsonBarbara A. Johnson Grove Township Auditor Star Route Box 55 Sinnamahoning, PA 15861 Dear Ms. Johnson: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 31, 1996 96 -604 Re: Conflict, Public Official /Employee, Township, Auditor, Immediate Family, Spouse, Board of Supervisors. This responds to your letter of September 28, 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 whose spouse has been appointed to the township board of supervisors. Facts: You have been the elected Auditor of Grove Township in Cameron County, Pennsylvania, for the past five years. In August, 1996, your husband was appointed to fill a vacancy on the Grove Township Board of Supervisors. You state that former Township Solicitors have previously advised others in the same situation that there would be no conflict of interest provided one did not vote on any matters relating to the spouse as a separate individual. That advice was also given at an Auditor's Training Seminar. Nevertheless, you state that in the interest of adhering to all applicable codes, you are requesting an advisory as to whether you may still serve as Township Auditor. 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. Johnson, 96 -604 October 31, 1996 Page 2 It is also initially noted that although you appear to be seeking an advice under "all applicable codes," this Advice is limited to addressing your inquiry under the Ethics Law. The State Ethics Commission does not have the statutory authority to issue advisories for other laws. As Auditor for Grove Township, 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: 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. 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. Section 3(j) of the Ethics Law provides as follows: Johnson, 96 -604 October 31, 1996 Page 3 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 provisions of the Ethics Law quoted above to the instant matter, the Ethics Law does not prohibit or restrict members of the same family from seeking or holding public office. The restriction of Section 3(a) is that a public official may not use the authority of office or confidential information to which he has access by being in his public position 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 you and your husband, as spouses, are immediate family members as that term is defined under the Ethics Law. Accordingly, although there is no prohibition or restriction that would preclude you from serving as auditor while your husband is a supervisor in the same township, you would have a conflict of interest and could not participate in any matter that would result in a private pecuniary benefit to your husband. For example, you could not participate in fixing Johnson, 96 -604 October 31, 1996 Page 4 your husband's compensation as a working supervisor. You could not participate in auditing those portions of the books and accounts of the Board of Supervisors dealing with the receipt of pecuniary benefit(s) by your spouse or dealing with funds to which he has access or for which he has responsibility. In each instance of a conflict of interest, you would be required to abstain and to satisfy the disclosure requirements of Section 3(j) of the Ethics Law set forth above. 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 Auditor for Grove Township, you are a public official subject to the provisions of the Ethics Law. You would have a conflict of interest in matters that would result in a private pecuniary benefit to your husband, who is a Supervisor in the Township. Pursuant to Section 3(a) of the Ethics Law, you could not participate in the inspection or audit of the books of the Board of Supervisors relating to the receipt of compensation by your husband or relating to funds to which he has access or for which he has responsibility. You may not fix compensation for your husband as a working Supervisor. In each instance of a conflict of interest, you would be required to abstain and to satisfy the disclosure requirements of Section 3(j) of the Ethics Law. 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 Johnson, 96 -604 October 31, 1996 Page 5 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. ncerely, Vincent J. Dopko Chief Counsel