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HomeMy WebLinkAbout01-505 KernSteve Kern, Township Supervisor Muddy Creek Township 125 Ridgeview Lane Portersville, PA 16051 ADVICE OF COUNSEL January 11, 2001 01 -505 Re: Conflict; Public Official /Employee; Township; Supervisor; Participation in Board Action to Appoint Certified Public Accountant; Immediate Family Member; Godchild of Supervisor's Daughter -In -Law's Mother. Dear Mr. Kern: This responds to your letter of December 6, 2000, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") presents any prohibition or restrictions upon a township supervisor with regard to participating in action of the board of supervisors regarding the appointment of a certified public accountant to audit the township books when the prospective appointee is the godchild of the supervisor's daughter -in -law's mother. Facts: You are a Supervisor in Muddy Creek Township. The Township is considering appointing certified public accountants, Caruso and Caruso, to audit the Township's 2000 books. After interviewing Vivian Caruso for the position, you learned that she was the godchild of your daughter -in -law's mother. You ask whether you would have a conflict of interest in participating in Board action to appoint Ms. Caruso and Caruso and Caruso to the position. Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) 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), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Supervisor for Muddy Creek Township, you are a public official as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act "), and hence you are subject to the provisions of that law. Section 1103(a) of the Ethics Act provides: Kern, 01 -505 Tary 11, 2001 Page 2 $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 that pertain to Section 1103(a) are defined in the Ethics Act as follows: $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 applying the above provisions of the Ethics Act to the circumstances which you have submitted, 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. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since a godchild of a public official's daughter -in -law's mother is not in a familial relationship delineated above, Section 1103(a) of the Ethics Act would not prohibit you from participating in Board action regarding the appointment of Vivian Caruso and Caruso and Caruso to audit the Township's books. Baker, Opinion 89 -016; See, also, Pulice v. State Ethics Comm'n, 713 A.2d 161 (Pa. ommw. 1998), appeal denied, 557 Pa. 642, 742 A.2d 1211 (1998). Lastly, 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 Kern, 01 -505 Tary 11, 2001 Page 3 code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As Supervisor of Muddy Creek Township, you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Section 1103(a) of the Ethics Act would not restrict you from participating in Board action regarding the appointment of Vivian Caruso and Caruso and Caruso to audit the Township's books because your daughter -in -law's mother's godchild is not a member of your immediate family as that term is defined under 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. Sincerely, Vincent J. Dopko Chief Counsel