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
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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