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HomeMy WebLinkAbout97-577 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 10, 1997 97 -577 Re: Conflict, Public Official /Employee, Member, Township Board of Auditors, Simultaneous Service, Interim Manager, Manager, Different Township. This responds to your letters of April 23, 1997 and May 7, 1997 by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Member of a Township Board of Auditors from simultaneously serving as either Interim Manager or Manager of a different Township where the Board of Auditors will be surcharging former Township Supervisors as a result of their violations of the Ethics Law. Facts: As the legal representative of the Board of Auditors of Township A, County B, you request a confidential advisory from the State Ethics Commission on behalf of the Board and specifically the Member whose conduct is at issue, Mr. C. Mr. C is a resident and elector of Township A, County B. Township A is a Second Class Township. For several years, Mr. C has been employed by Township D, a neighboring Second Class Township in County B. The Township A Supervisors appointed Mr. C to fill a vacancy on the Township A Board of Auditors. Mr. C is to hold that position until the first Monday in January, 1998. Additionally, Mr. C was recently appointed by the Board of Supervisors of Township D to the position of Interim Manager of Township D due to a vacancy. There is a chance that Mr. C will become the Manager of Township D. Prior to Mr. C's appointment as Township A Auditor, ethics charges were filed against certain Township A Supervisors. Ultimately, Commonwealth Court held in 1996 that those individuals, now former Supervisors, had violated the Ethics Law but, because Act 170 of 1978 did not authorize the State Ethics Commission to order restitution, the Supervisors were not ordered to pay restitution to the Township. You state that neither Mr. C nor any other Member of the Township A Board of Auditors was among the former Supervisors found to have violated the Ethics Law. Confidential Advice of Counsel, 97 -577 June 10, 1997 Page 2 You state that neither Act 170 of 1978 nor Act 9 of 1989 would preclude the Township A Auditors from surcharging those former Supervisors for the amount of Township funds which they unlawfully spent. You state that pursuant to 53 P.S. §65907(a), it appears that the Township A Auditors are compelled to surcharge the former Supervisors. Consequently, during the remainder of 1997, Mr. C would be actively involved in seeking to compel the former Township A Supervisors to make restitution to the Township. Citing 53 P.S. §§65404(b) and 66301(c), you request an advisory as to whether Mr. C and /or the Township A Board of Auditors will be in violation of the Ethics Law where Mr. C simultaneously serves as an appointed Township A Auditor and as the Interim Manager or Manager of Township D while the Township A Board of Auditors actively pursues surcharges against former Township A Supervisors who have been adjudicated as having caused an economic loss to the Township as a result of the violations of Act 170 of 1978. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. §§407(10), (1 1), 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 a Member of the Township A Board of Auditors and as either the Interim Manager or Manager of Township D, Mr. C would be a public official /public employee subject to the provisions of the Ethics 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 Confidential Advice of Counsel, 97 -577 June 10, 1997 Page 3 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. Section 3(a) of the Ethics Law becomes applicable where a person is simultaneously holding two positions which by law, he may not hold at the same time, thereby obtaining a pecuniary benefit to which he is not lawfully entitled. The Second Class Township Code provides, in pertinent part, as follows: § 65404. Auditors (b) No auditor shall at the same time hold any other elective or appointive township office or position or be an employe of the township for which he has been elected or appointed. 53 P.S. §65404(b). §66301. Township manager; appointment, removal, powers and duties; compensation; bond (c) The office of township manager is not incompatible with the office of township secretary, township treasurer or any other township office or employment, except that of supervisor, auditor, assessor or township police officer. 53 P.S. §66301(c). The application of the Ethics Law to your inquiry hinges upon the proper interpretation of these two provisions from the Second Class Township Code. If the Second Class Township Code would permit the aforesaid simultaneous service by Mr. C, the Ethics Law would likewise allow such simultaneous service because Mr. C would not be obtaining a pecuniary benefit to which he would not be lawfully entitled. On the other hand, if the aforesaid simultaneous service would be prohibited by these provisions of the Second Class Township Code, such simultaneous service would likewise transgress the Ethics Law to the extent a pecuniary benefit would be received to which Mr. C would not be lawfully entitled. It is noted that both of the above provisions were amended effective May 7, 1996, and the first provision above, 53 P.S. §65404(b), was again amended effective in 1997. There does not appear to be any case law that would interpret these two Confidential Advice of Counsel, 97 -577 June 10, 1997 Page 4 provisions with regard to the issue that you have presented, and on their face, the provisions are capable of different interpretations as to whether simultaneous service as an Auditor and Township Manager is prohibited generally or merely within the same Township. The State Ethics Commission does not have the express statutory jurisdiction to interpret laws other than the Ethics Law. It is for a court to interpret these provisions of the Second Class Township Code upon which your inquiry depends. Absent such a judicial interpretation, this advisory is necessarily limited to providing the above general guidance. Finally, it is noted that any Ethics Law restrictions as to Mr. C's simultaneous service would apply to restrict Mr. C rather than the Board, and that the proposed actions by the Board of Auditors in pursuing surcharges against former Supervisors would have no impact or effect on the question of simultaneous service by Mr. C in the aforesaid positions. 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. ConClusior: As a Member of the Township A Board of Auditors and as either the Interim Manager or Manager of Township D, Mr. C would be a public official /public employee subject to the Ethics Law. If the Second Class Township Code would permit Mr. C's simultaneous service in the aforesaid positions, Section 3(a) of the Ethics Law would likewise allow such simultaneous service. If simultaneous service in the aforesaid positions would be prohibited by the Second Class Township Code, the simultaneous service would likewise be prohibited by Section 3(a) of the Ethics Law to the extent a pecuniary benefit would be received to which there would be no lawful entitlement. In the absence of a judicial interpretation of the pertinent provisions of the Second Class Township Code, this advisory has necessarily been limited to providing the above general guidance. 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. Confidential Advice of Counsel, 97 -577 June 10, 1997 Page 5 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 J. 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, ncent P Dop o Chief Counsel