HomeMy WebLinkAbout00-541 RittsRobert W. Ritts
R.D. #1, Box 105
Emlenton, PA 16373
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
March 14, 2000
Re: Conflict; Public Official /Employee; Second Class; Township; Auditor; Supervisor;
Vote.
Dear Mr. Ritts:
This responds to your letter of February 9, 2000 and February 14, 2000 by
which you requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 et sew., presents any prohibition or restrictions upon a township auditor
whose husband is a township supervisor.
Facts: You are a Supervisor for Salem Township ( "Township "), Clarion County.
Your wife, Sonya S. Ritts ( "Mrs. Ritts ") was recently elected as Auditor for the
Township.
On October 24, 1999, Mrs. Ritts was in car accident and was in critical
condition for about 16 days. Mrs. Ritts was hospitalized until December 17, 1999
and is now is recuperating in a wheelchair.
At the beginning of December 1999, you were approached by one of the other
Supervisors who requested that Mrs. Ritts resign from her position as Township
Auditor on the grounds that she could not complete the audit by January 15, 2000.
Mrs. Ritts declined to resign, took her oath in the hospital, and followed all the
requirements necessary to take office in January.
When Mrs. Ritts attended the Auditors' organization meeting, she and the other
Auditors were given a memorandum, a copy of which you have submitted and is
incorporated herein by reference. The memorandum is dated January 5, 2000 and is
directed to the Salem Township Auditors from the Salem Township Board of
Supervisors. In the memorandum, the Township Board of Supervisors requests
approval for their hourly wages to be set at $9.25 for the 2000 calendar year. to
addition, the Board advises the Auditors that the State Association of Township
Supervisors has advised the Supervisors of the possibility of a conflict of interest
regarding Mrs. Ritts. The memorandum states in part:
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics@state.pa.us
00 -541
Riffs, 00 -541
March 14, 2000
Page 2
[I]n order to prevent any violation or appearance of
conflict of the State Ethics Laws, [Mrs. Riffs] should abstain
from any auditing discussions, votes, or activities, in
matters that either directly affect or are overseen by Robert
Ritts. This would include wage and benefit discussions and
the review and opinion of accounts that are controlled
directly by the Board of Supervisors and Robert Ritts has
signing authorization for. Accounts such as Tax Collection,
etc., that are not affected by the conflict of interest are not
included in this. If you have any questions and concerns
regarding this matter please submit them to the Board of
Supervisors in writing so that we may have the solicitor
advised us of how to further proceed.
Memorandum from the Salem Township Board of Supervisors to the Salem Township
Auditors dated January 5, 2000.
At the Auditors' meeting, you state that Mrs. Ritts abstained from voting on wages
because she knew she was required to do so.
The regular Township meeting for January was not held due to the fact that the
Township Secretary did not advertise the meeting. The Board of Supervisors decided
to hold its first meeting on February 7, 2000. When you attended the meeting, you
were given a copy of a letter dated February 7, 2000 from the Township Solicitor to
"Connie." In the letter, the Solicitor addresses the issue of whether there is a conflict
of interest in a township when an elected supervisor and an elected township auditor
are husband and wife. The Solicitor opines that the issue is covered as a pecuniary
conflict of interest as outlined in 53 P.S. §65916 which provides that "any auditor
who is financially interested, directly or indirectly, in any township transaction commits
a summary offense. The auditor shall forfeit the office and forfeit to the township any
financial benefit derived from the transaction."
Based on the foregoing, the Solicitor concludes that if the township supervisor
receives money for his services, the elected auditor is "indirectly financially interested"
in the transaction, and therefore, must forfeit her office and any monies received by
her husband, but if the supervisor would not receive any monies for his services
directly or indirectly, there would not be a conflict of interest. You have submitted a
copy of the Solicitor's letter dated February 7, 2000 and Section 65916 of the Second
Class Township Code, which are incorporated herein by reference. You also have
submitted a copy of an article entitled "Salem supervisor offers to forfeit 2000 wages"
which appeared in the Clarion News, which is incorporated herein by reference.
You ask for an advisory on behalf of Mrs. Ritts as to whether she would have
to forfeit her office as Township Auditor because you receive money for your services
as Township Supervisor.
Discussion: It is initially noted that pursuant to Sections 1107(10) and
1107(1 1) of the Ethics Act, 65 Pa.C.S. § §1107(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 Pa.C.S. §§1107(10), (1 1).
An advisory only affords a defense to the extent the requestor has truthfully disclosed
all of the material facts.
Ritts, 00 -541
March 14, 2000
Page 3
As Auditor for Salem Township, Mrs. Ritts is a public official as that term is
defined in the Ethics Act, and hence Mrs. Ritts is subject to the provisions of that Act.
Section 1 103(a) of the Ethics Act provides:
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. §1103(a).
The following terms are defined in the Ethics Act as follows:
Section 1102. 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. The term 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.
65 Pa.C.S. §1102.
In addition, Sections 1 103(b) and 1103(c) of the Ethics Act 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 judgment 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 1 103(j) of the Ethics Act provides as follows:
Section 1103. Restricted activities.
Ritts, 00 -541
March 14, 2000
Page 4
(j) Voting conflict. - -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.
65 Pa.C.S. §1103(j).
In each instance of a conflict, Section 1103(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 Act, then voting is permissible provided
the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S.
In applying the above provisions of the Ethics Act to the instant matter,
pursuant to Section 1103(a) of the Ethics Act, a public official /public employee 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. The term
"immediate family" is defined to include a parent, spouse, child, brother or sister.
Because you are in one of the familial relationships delineated above, you are a
member of Mrs. Ritts' immediate family.
Accordingly, although there is no prohibition or restriction that would preclude
Mrs. Ritts from serving as Auditor while you are a Supervisor in the same township,
she would have a conflict of interest and could not participate in any matter that
would result in a private pecuniary benefit to you. For example, Mrs. Ritts could not
participate in fixing your compensation as a working supervisor. Mrs. Ritts 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 you or dealing with
Kitts, 00 -541
March 14, 2000
Page 5
funds to which you have access or for which you have responsibility. In each instance
of a disclosure requirements , ect 1 103( of the Ethics satisfy the
s Actt set forth above.
The propriety of the proposed conduct has only been addressed under the Ethics
Act; the applicability of any other statute, code, ordinance, regulation or other code
of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the Second Class Township Code.
Conclusion: As Auditor for Salem Township, Mrs. Ritts is a public official
subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "),
65 Pa.C.S. §1101 et seq. Although the Ethics Act would not prohibit Mrs. Ritts from
serving as Township Auditor while you are a Township Supervisor, she would have a
conflict of interest in matters that would result in a private pecuniary benefit to you.
Pursuant to Section 1103(a) of the Ethics Act, Mrs. Ritts could not participate in the
inspection or audit of the books of the Board of Supervisors relating to the receipt of
compensation by you or relating to funds to which you have access or for which you
have responsibility. Mrs. Ritts may not fix the compensation for you as a working
Supervisor. In each instance of a conflict of interest, Mrs. Ritts would be required to
abstain and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the Ethics
Act.
Pursuant to Section 1107(11), an 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, provided 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 1. 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.
rely,
Vincent - Dopko
Chief Counsel