The URL can be used to link to this page

Home My WebLink About92-535STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 13, 1992 Roger W. Richards, Esquire 92 -535 717 State Street, Suite 700 First National Bank Building Erie, PA 16501 Re: Conflict, Public Official /Employee, Township Auditor, Attorney, Law Suit against Township. Dear Mr. Richards: This responds to your letter of December 30, 1991, 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 who has appealed to the county Court of Common Pleas a decision made by the township supervisors denying a proposed replot of his property. Facts: In November, 1991, you were elected to_ serve as an Auditor for the Township of Fairview in Erie County, Pennsylvania. Prior to your election, you caused to be filed an appeal of a decision made by the Township; Supervisors denying a proposed repiot of your property. You are concerned that the issue of your appeal could create potential conflicts in your Carrying out the duties and responsibilities required of you as an Auditor. You state that at this time, you are not aware of specific conflicts which would exist upon your assuming the auditor position. However, the fact that the Auditors set the salaries of the Supervisors, you believe, could be viewed as a potential conflict. Noting a prior telephone conversation between your assistant and the Assistant Counsel of this Commission, you seek an advisory from this Commission . - _regarding your holding the position of Township Auditor while #ppealing the Township Supervisors' decision regarding the 'replotting issue to the Erie County Court of Common Pleas. You state you feel that it is of the utmost importance that you assume your position with a clear ethical opinion as to Roger W. Richards, Esquire February 13, 1992 Page 2 any such conflict. You seek . an expedited advisory noting that a meeting of the Auditors is scheduled for .January 7, 1992, which would be your first meeting as a newly elected Auditor. Discussion: As an Auditor for the Township of Fairview in Erie County, Pennsylvania, you will upon assuming office become a public official as that term is defined-under the Ethics Law, and hence you be subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section'3. Restricted Activities. ;No,. public official "er 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 net include an action having a de minimis economic imjavt 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 the exercise of which is necessary to tie Performance of duties and responsibilities Roger W. Richards, Esquire February 13, 1992 Page 3 nnique to ,a particular public office or po olpublic employment. •_ . In addition, Sections 3(4) and . 3() of the Ethies LaW provide in ,pait that no person shall offer to a JPAbli'd official/employee anything _ of monetary value q.nd,..no, ptiblic official/emriloyee shall solicit or accept anything ofAbneta'ry value based upon the understanding that the vote, official action, or judgement of the public official/eMployee 'would b* influenced thereby. Reference is made to these rwovisionb of the law not to imply that theie has or will be any transgression thereof:butmerely to provide a cotplete 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 hall-be employed. --Any public official or public employee ,:who in the discharge of his official duties,-Mould 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 memorandum filed with the person responsible for recording the minutes of the :meeting at which the vote is taken, provided,that- wheneirer 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 governin4 body have cast Opposing votes, the member who hal abstained shall be permitted to vote to break Roger W. Richards, Esquire February 13, 1992 Page 4 the tie vote if disclosure is made as otherwise provided herein. If a conflict exists; Section 3(j) requires the 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. 1 In applying the above provisions ,of the Ethics Law to the circumstances which you have presented, Section 3(a) of the Ethics Law prohibits a public official /public employee 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 /employee himself, any member of his immediate, . family or a business with which he or a member of his immediate family . is. associated. It is clear that any matter before the Township Auditors pertaining to the law suit whereby you- appealed the Township's decision on . the replotting issue would present . a conflict of interest for you. Section 3(a) would prohibit any use of the authority of your office or confidential information received by holding your position for your own private pecuniary benefit, even if that benefit would be realized indirectly through your law suit. For example, if the Township were to create a reserve fund for contingent liability as to the lawsuit, you could have no involvement as an Auditor in that matter. This is only one example; -a conflict of interest would arise for you as . to any matters before the Auditors which would pertain to the law suit. In each instance of a conflict Of interest, you would be required to abstain : from any participation of any nature whatsoever, including but not limited to taking part in discussions, voting, lobbying for a , particular result, or any other use of the authority of office. In each instance of a conflict of interest, you would further be required to comply with the disclosure requirements of Section 3(j) set forth above. You. ask "whether the fact that the Auditors set the salaries of the Supervisors could be viewed as a potential conflict for you. Absent any factual nexus to your law suit, the setting of the ea °er`vis'ors' salaries, in and of itself, would not constitute a cont iet bk Ihtereat tot you. If there additional circumstances which you believe may present a conflict: of interest, you may seek :further advice from this Commission. Roger W. Richards, Esquire February 13, 1992 Page 5 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 a Township Auditor. for the Township of Fairview in Erie County,_ Pennsylvania, you are a public official subject to the provisions of the Ethics Law. You would have a conflict of interest as ° to any matter ' where the use of the authority of your office or confidential information received by holding office would result in a private pecuniary benefit for you, any member of your immediate.rfamily, or a business with which you or a : member of . your immediateR family is associated. You would .- specif idaily have a conflict of - interest in any matter before the Auditors involving your law suit whereby you appealed the Township's denial of a proposed replot of your property. 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) would have to be observed. 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. such. This letter is a public record-and ,till be made available as Finally, if you disagree with this Advice or if you have any reason to challenge sake, .• you may request that the full Commission review this Advice. A`personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant.to 51 Pa. Code §2.12. Sincerely, ,Got Vincent J. Dip o Chief Counsel s '7