HomeMy WebLinkAbout01-546 FishelShirley R. Fishel
1591 Ridge Road
York Springs, PA 17372
Dear Ms. Fishel:
ADVICE OF COUNSEL
April 25, 2001
01 -546
Re: Conflict; Public Official /Employee; Township; Auditor; Candidate; Member; Board
of Supervisors; Immediate Family Member; Spouse.
This responds to your letter of March 23, 2001, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. §1101 et seq., presents any prohibition or restrictions upon a candidate for
township supervisor as to serving on the same board on which her spouse serves as a
township supervisor.
Facts: You currently serve as Auditor for Latimore Township, Adams County. On
March 6, 2001, you submitted your nominating petition for the position of Supervisor of
Latimore Township. You are aware that if you win the election, you will be required to
relinquish your position as Auditor.
Your husband presently serves on the Board of Supervisors in Latimore Township.
You ask whether there are any "legal stipulations" that would prevent you from serving on
the same Board as your husband in a second class township.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(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.
Upon winning the election for the position of Latimore Township Supervisor, you
would be a public official as that term is defined in the Ethics Act, and hence you would
be s subject to the provisions of that Act.
Fishel, 01 -546
April 25, 2001
Page 2
Section 1103(a) of the Ethics Act provides:
$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:
$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:
$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 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.
Fishel, 01 -546
April 25, 2001
Page 3
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. Since the term "immediate family" is
defined to include a parent, spouse, child, brother or sister, and since your spouse is in
one of the familial relationships delineated above, your spouse is a member of your
immediate family.
Although there is no prohibition or restriction under the Ethics Act that would
preclude you from serving as a supervisor while your spouse serves as a supervisor in
the same township, you would have a conflict of interest and could not participate in any
matter that would result in a private pecuniary benefit to you or your spouse. In each
instance of a conflict, as a township supervisor, you would be required to abstain and
observe the disclosure requirements of Section 1103(j) of the Ethics Act as 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 respective municipal code.
Conclusion: Upon winning the election for the position of Supervisor for Latimore
Township, you would be 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 there is no
prohibition or restriction under the Ethics Act that would preclude you from serving as a
supervisor while your spouse serves as a supervisor in the same township, you would
have a conflict of interest and could not participate in any matter that would result in a
private pecuniary benefit to you or your spouse. In each instance of a conflict, as a
township supervisor, you would be required to abstain and observe the disclosure
requirements of Section 1103(j) of the Ethics Act as set forth above. 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
Fishel, 01 -546
April 25, 2001
Page 4
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 §13.20. 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