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HomeMy WebLinkAbout94-538 ShanerRichard A. Shaner R. D. #5, Box 123 Muncy, PA 17756 94 -538 Re: Conflict, Public Official /Employee, Township Auditor, Member of Immediate Family, Spouse, Township Secretary/Treasurer. Dear Mr. Shaner: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 1, 1994 This responds to your letter of March 2, 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 Township Auditor whose spouse is the Secretary /Treasurer for the same Township. Facts: You are a Township Auditor for a Second Class Township having taken office in January, 1994. Your wife is the appointed Township Secretary /Treasurer for the same Township. She is not a Supervisor. You request an advisory from the State Ethics Commission as to whether a conflict of interest exists, because of your wife's position, and whether you may vote to set the wages /salaries of the working Township Supervisors and the Supervisor /Roadmaster. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. SS407(10), (11)4 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. SS407(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 the Second Class Township, you are a public official as that term is defined under the Ethics Law, and hence Shaner, Richard A., 94 -538 April 1, 1994 Page 2 you are subject to the provisions of that law. Section 3(a) of the. Ethics -Law provides: Section 3. RestrictedtActivities (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 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. "Immediate Family. ". A parent,- spouse, child, brother or sister. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall 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 C Shaner, Richard A., 94 -538 April 1, 1994 Page 3 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 - 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, 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 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. tie vote if disclosure is made as otherwise provided herein. - -- If a conflict exists, Section 3(j), 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 -ha majority is unattainable due to the abstentionjsj- f runder the Ethics Law, then in that event particpatiion -is permissible provided the disclosure requirements noted above are Shaner, Richard A., 94 -538 April 1,•'1994 Page 4 followed. gsa, Mlakar, Advice 91-523-S. Pursuant to Section 3(a) of the Ethics Law set forth above, you would .have a conflict of interest in any situation where the use of the authority of your office as an auditor, or the use of confidentia"Information received by being in your public office, would result iri "`a` p "rivate pecuniary benefit for you, any member of yoiir family, or a business with which you or a member of your thifit441itite family is associated. In this case, it is clear that your c use is a:'member of your immediate family as that term is-'defi.Aedli der - the Ethics Law. There is no prohibition or restriction which would prohibit you f brf•' �serving _as' Auditor, including voting on the wages and safar so! ie'working Supervisors and the Supervisor /Roadmaster, whileyoel ilife is serving as Township Secretary /Treasurer. Flaweier you could not participate in any matter which could result in '' a': flnanal benefit . to your wife nor could you participate in afry "mat tei s to her. See Tindall, Advice 89 -599. t- ar As a public official', in each instance of a . conflict of interest, would be required to abstain from any participation of any s n"Sture whatsoever, including but not limited to participat3:iti" ••3n discussions, lobbying. for ;.a particular result, voting; or'otherwise using the authority of office. Additionally, in each instance of a conflict of interest you would be required to satisfy the disclosure requirements of Section 3(j) as set forth above. 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 Auditor for the Second Class Township, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit you from • serving as a Township Auditor while your wife is serving as the Secretary /Treasurer for the township. Y ou would have a conflict of interest should any matter come before the Auditors where the use of authority of office or confidential information received by holding your position would result in a private pecuniary benefit to you, your spouse or any other member of your immediate family, or to any business with which you or a member of your immediate family is associated. In each instance of a conflict of interest, you would be required to abstain from any participation of any nature whatsoever and the disclosure requirements of Section 3(j) of the Ethics Law would -lave to be fully satisfied. Lastly, the Shaner, Richard A., 94 -538 April 1, 1994 Page 3 propriety of the propesed oond'utt has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a tbitiplWee defehte in any -enforcement proceeding initiated by the Cdiva esabn, evidence of good faith conduct in any other civic o ttititihai 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 roll 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 fifteen (15) 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). erely, incent Dop Chief Co el .