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HomeMy WebLinkAbout94-521 RussellJacqueline L. Russell, Thompson Building 3rd Floor, Room 310 Pottsville, PA 17901 Dear Ms. Russell: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -16.10 ADVICE OF COUNSEL March 7, 1994 Esquire Re: Conflict, Public Official. /Employee, Township Township Auditor, Use of Authority of Office or Information, Immediate Family, Husband and Wife. 94 -521 Supervisor, Confidential This responds to your letters of January 6 and February 7, 1994 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a T6wnship Supervisor and a Township Auditor who are husband and Wife. Facts: You represent two individuals in a second class township. One is a supervisor, the other is an auditor; They are husband and wife. They have requested you to Obtain an advisory froM this Commission regarding their conduct as to each other. It it need that there are three auditors in the township. You state that the Second Class Township Code provides that the audit6r's duties include examining the books of the supervisors, determihiiig whether a surcharge is appropriate and setting the rate of pay for the supervisors. Accordingly, you seek advice from the State Ethids Commission. Discussion: It is initially noted that pursuant to Sections 7(1C ) and 7(11) of the Ethics Law, GS P.S. Ss407(10), (11), advisories are issued to the requester based upon the facts which the requestor has submitted. In issuincl the advisory based updn the facts which the requestor has submitted, the Commission deed diet engage in an independent investigation of the facts, net Mesta it speculate a$ 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. SS407(10), (11). An advisory only affords a defense to the extent the requester has Russell, Jacqueline L., Esgtire, 54 -521` March 7, 1994 Page 2 truthfully disclosed all of the material facts. As a Township Supervisor and Township Auditor for a Second Class Township, these individuals are public officials as that term is defined under the Ethics Law, and hence they are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Sectio i .._...__Fte. tricted..Act .vities. (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. Defi :tiofs "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 pectiniary benefit of himself, a member of his immediate family Or a business with which ' he or a member of hie 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, stry, occupation or other group which. includes the public official or public employee, a member of his immediate family or a bUdiness with which he or ' fa member Of his mediate 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 etplOyTlent . ° 1a►ediate Family." A parent, spouse, child, brother or sister. In addition, Sectiens 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official/employee anything of mbiletary value and no public official /employee shall Russell, Jacqueline L., Esquire, 94 521 March 7, 1994 Page 3 solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. 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 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. If a conflict exists, 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 Russell, Jacqueline L., Esquire,;.94 --521 March 7, 1994 Page 4 majority is unattainable . due to the abstention(s) from conflict under the Ethics Law, .them in that event participation is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the provisions of the Ethics Law quoted above to the instant_ matter, the Ethics Law does not prohibitor restrict members of the same family from seeking or being elected to public office. The restriction of Section 3(a) is that a public official may not use the authority of office to obtain a private pecuniary benefit for. himself or -a member of his immediate family. In this case it is clear that the individuals, as spouses, are members of the same immediate family as that term is defined under the Ethics Law. Accordingly, although there is no prohibition or restriction from one spouse serving as auditor when the other spouse is supervisor in the same township, the spouse who is auditor could not participate in any matter which could result in a financial .. benefit to her husband nor could she participate in any personal matter as to..him. In particular, she could not participate in fixing his compensation. She could not participate in auditing that part of the books and accounts of the Board of Supervisors dealing with the receipt of a pecuniary benefit by her spouse. As to the Supervisor, a conflict of interest would arise whereby the use of his .authority of office or confidential information which he has obtained through holding office, would result in a private pecuniary benefit, either for himself, for a member of your immediate family such as his spouse, or for a business with which he or a member of his immediate family is associated. In such. conf licts , the Supervisor would have to remove himself from any aspect' of participation. The prohibited participation would include not only voting but would extend to other forms of pfficial participation such as participating in negotiations or discussions regarding such matters or lobbying for a particular result. Where such a. conflict -of interest exists, the public official must not only abstain, but under the . provisions ,'of the Ethics Law set forth above, he must.also publicly announce the nature of his interest and also file a written memorandum with the person recording the minutes,. disclosing the nature of bis interest. 'In light of the above, Section 3(j) of the Ethics Law would require these individuals to publicly announce their interests and the limitation of their participation as outlined above and in addition file written memorandums to that effect with the person responsible for recording the minutes of the meeting of the township supervisors and township auditors. Russell, Jacqueline L., Esquiri, 94.523 March 7, 1994 Page 5 The propriety of the proposed conduct has only been addressed Under the Ethics Law; the applicability of any other statute, code, ordinance, gulatlbh or other code of conduct other than the Ethics Law has hot be€n Obnsidered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the iftlidebilitY of the Second Class Township Code. Conclusion: As a Tow iShiEup and a Township Auditor for a Second tlass Township, these individuals are public officials subject to the provisions of the Ethics Law. The Auditor may not participate, inspect dr audit the books of the board of supervisors relating to the ceipt 'df cothpensation by her spouse, nor could she fix compensation for her spouse. A conflict of interest would arise for the Supervisor wPiere the use of authority of office or confidential information received by holding his position would result in a private pecuniary benefit to his spouse. In each instance of a conflict of interest, the disclosure requirements of Sectidh 3(j) of the Ethics Law would have to be met. Lastly, the pro 3rety of the proposed conduct has only been addressed under the Ethics Lava. Pursuant to Section 7(11), this Advice is a complete defense in any a forcemiht proceeding initiated by the Commission, and eviagheb of good faith conduct in any other civil or criminal probbedin #,,providing the requestor has disclosed truthfully all the material facts ind committed the acts complained of in reliance on the Achrice 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 forttal Opinion will be issued by the Commission. Any such appeal must be In writing and must be actually received at the Commission within fifteen (15) days 0f 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 mall, delivery service, or by FAX transmission (717 - 787 - 0806). Vincent J. Dopko Chief Counsel