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Home My WebLink About00-571 DeweyPatricia M. Dewey 338 Old Bailey Lane West Chester, PA 19382 -8437 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL April 26, 2000 00 -571 Re: Conflict; Public Official /Employee; Second Class; Township; Auditor; Supervisor; Husband and Wife. Dear Ms. Dewey: This responds to your letter of April 3, 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 seq., presents any prohibition or restrictions upon a township auditor and a township supervisor who are husband and wife. Facts: You are the Chairman of a five - person elected Board of Supervisors for Thornbury Township ( "Thornbury "), a second class township. You have check signing authority along with two other supervisors. Your husband is the Chairman of the three member Board of elected Auditors for Thornbury. You ask whether the service of your husband as a Thornbury Auditor and yourself as Chairman of the Thornbury Board of Supervisors constitutes an ethics violation. One of Thornbury's Supervisors has informed you that there is case law, which indicates that this combination is an ethics violation. You request would st an advice as transgress the Ethics stances and conditions in which the above combination Act. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107110), (1 1), advisories are issued to the requester based upon the facts which the requester has submitted. In issuing the advisory based upon the facts which the requester 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. As Chairman of the Board of Supervisors and Auditor for Thornbury Township, you and your husband are public officials as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1 103(a) of the Ethics Act provides: FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Dewey, 00 -571 April 26, 2000 Page 2 65 Pa.C.S. §1103(a). 65 Pa.C.S. §1102. Section 1 103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 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. Section 1103(j) of the Ethics Act provides as follows: Section 1103. Restricted activities. (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 D ewey , 00 -571 April 26, 2000 Page 3 number of members of the body required to abstain from voting under the provisions of this section makes 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. Although there is no prohibition or restriction under the Ethics Act that would preclude you from serving as a Supervisor while your husband serves as an Auditor in the same township, your husband 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, as a Thornbury Auditor, your husband could not participate in fixing your compensation as a working supervisor. Furthermore, he 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 funds to which you have access or for which you have responsibility. In each instance of a conflict of interest, re requirements required nts of Section 1 103(j) ofthe Ethics Act set satisfy the disclosure t fort above. q Likewise, in your position as Supervisor, you could not use the authority of your office or confidential information for a private pecuniary benefit either for yourself or your spouse. In such conflicts, you as a Thornbury Supervisor would have to remove yourself from any aspect of participation. The prohibited participation would include not only voting but would extend to other forms of official participation such as participating in negotiations or discussions regarding such matters or lobbying for a particular result. 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 Dewey, 00 -571 April 26, 2000 Page 4 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 Chairman of the Board of Supervisors and Auditor for Thornbury Township, you and your husband are public officials 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 you from serving as a Township Supervisor while your husband serves as a Township Auditor, your husband 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, your husband 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. He may not fix the compensation for you as a working Supervisor. Furthermore, you are prohibited from using the authority of your office or confidential information that would result in a private pecuniary benefit either for yourself or your spouse. In each instance of a conflict of interest, you and your husband would be required to abstain and 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). 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 J. pko Chief Counsel