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HomeMy WebLinkAbout98-505 SechristSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 23, 1998 John R. Morgan, Esquire 116 -1 Warren Street 98 -505 Tunkhannock, PA 18657 Re: Conflict, Public Official /Employee, Township, Auditor, Former Township Supervisor, Participation in Audit. Dear Mr. Morgan: This responds to your letter of December 22, 1997 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a Township Auditor with regard to participating in the audit and /or signing the audit for a year in which she previously served as a Township Supervisor. Facts: You seek an advisory on behalf of Barbara Sechrist (Sechrist), who is a newly elected Auditor for Eaton Township. Immediately prior to taking office as an Auditor (in January, 1998), Sechrist will complete a term as an Eaton Township Supervisor. You ask whether Sechrist will have a conflict of interest with regard to participating in the audit and /or signing the audit for the year 1997, a year in which she served as Supervisor. You have submitted various memoranda reflecting your view on the issue. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. §§407(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 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As an Auditor for Eaton Township, Barbera Sechrist (Sechrist) would be considered a public official as that term is defined in the Public Official and Employe Morgan /Sechrist, 98 -505 January 23, 1998 Page 2 Ethics Law ( "Ethics Law "), and hence she would be subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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. "Conflict" or "conflict of interest" 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. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) 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 Mnraan /Sechrist, 98 -505 January 23, 1998 Page 3 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. 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. In each instance of a conflict, Section 3(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 Law, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In you have submitted, pursuant oVSe Section 3(a) of the Ethics Law, a public circumstances al /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 element of use of authority of office would be met by the participation in the audit and /or by the signing of the audit. However, for a conflict of interest to exist, the element of "private pecuniary benefit" would also have to be established. In this regard, it is noted that even an attempt to obtain a private pecuniary benefit is sufficient to establish this element. Taylor, Order 983. You have not referenced any specific area of concern. Therefore, this Advice is necessarily limited to providing general guidance and to providing illustrations where a conflict of interest could arise. Generally, Sechrist would have a conflict of interest with regard to audits or portions of audits as to her actions as Supervisor, where such would have a financial impact upon her. One example of a situation where a conflict of interest would arise for Sechrist would be as to portions of the audit which could be subject to a surcharge action. Obviously, a use of authority of office so as to avoid a surcharge action would meet the elements for a conflict of interest as set forth above. Another example where a conflict of interest would arise would be where an auditor would use the authority of office to conceal a discrepancy as to her prior actions as a township supervisor. Morgan /Sechrist, 98 -505 January 23, 1998 Page 4 In each instance of a conflict of interest, Sechrist would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. With regard to the abstention requirement, you are advised that the use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Thus, where a conflict of interest would occur as to an audit, it would be insufficient to merely abstain from signing the audit. Rather, the public official would also be required to abstain from participation in that portion of the audit. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As an Auditor for Eaton Township, Barbara Sechrist (Sechrist) would be considered a public official subject to the provisions of the Ethics Law. Sechrist would have a conflict of interest with regard to audits or portions of audits as to her actions as Supervisor, where such would have a financial impact upon her. In each instance of a conflict of interest, Sechrist would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. Where a conflict of interest would occur, it would be 'insufficient to merely abstain from signing the audit. Rather, Sechrist would also be required to abstain from participation in that portion of the audit. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this 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, providing 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 1. 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. incerely, Vincent J. Dopk6 Chief Counsel