HomeMy WebLinkAbout01-545 ReeseHarry J. Reese
R.R. 1, Box 95
Falls, PA 18615
Dear Mr. Reese:
ADVICE OF COUNSEL
April 25, 2001
01 -545
Re: Conflict; Public Official /Employee; Township; Auditor; Court Order; Member;
Compensation Board.
This responds to your letter of March 26, 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 township auditor to
serve as per court order on a compensation board with three township supervisors to
determine the compensation of township supervisors serving as part -time roadmasters or
part -time laborers.
Facts: You are an elected auditor of Exeter Township, Wyoming County. You
question the propriety of a court order designating the three township supervisors and the
township auditor as a board of compensation to set the compensation of "those officials
as set forth in 53 P.S. Sec. 65901." You have submitted a copy of the court order, which
is incorporated herein by reference.
You state that Section 404 of the "Second Class Code" [sic] provides that no
auditor shall at the same time hold any other elective or appointive township office or
position." You ask whether you would violate the Ethics Act if you would serve on the
Compensation Board as directed by the court order.
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.
Reese, 01 -545
April 25, 2001
Page 2
As Auditor for Exeter Township, you are a public official as that term is defined in
the Ethics Act, and hence you are subject to the provisions of that Act.
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.
65 Pa.C.S. §1102.
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.
Section 1103(a) of the Ethics Act would not prohibit you from serving on the
Compensation Board as per a court order while you serve as Townshi D Auditor in that
you would be setting the compensation for others, but not yourself. Without a private
pecuniary benefit to you, you would not have a conflict.
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 Exeter Township, you are a public official subject to
the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
Reese, 01 -545
April 25, 2001
Page 3
1101 et seq. Section 1103(a) of the Ethics Act would not prohibit you from serving on
the Compensation Board as per a court order while you serve as Township Auditor in that
you would be setting the compensation for others, but not yourself. Without a private
pecuniary benefit to you, you would not have a conflict. 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 §13.20. 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