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HomeMy WebLinkAbout92-537Dear Ms. Kidd: STATE ETHICS COMMISSION I 309 FINANCE BUILDING P.O. BOX 11470 4 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 18, 1992 Ms. Lucille Kidd 92 -537 P.O. Box 295 Mount Union, PA 17066 Re: Conflict, Public Official /Employee, Township Auditor, Immediate Family, Spouse, Township Secretary /Treasurer Audit of Records. This responds to your letter of January 8, 1992, 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 Second Class Township Auditor whose spouse serves as the Secretary /Treasurer of the Township, with regard to auditing the records prepared by the spouse as Secretary /Treasurer. Facts: As one of the three elected auditors of Shirley Township in Huntingdon County, Pennsylvania, you st4ate that you have been requested by the Shirley Township Supervisors to seek an advisory from the State Ethics Commission. Your husband was appointed as Secretary /Treasurer of Shirley Township on June 13, 1991, due to the illness of the individual who had been holding that position. Your husband served as the Township Secretary /Treasurer from June 13, 1991, through December 31, 1991. You note that at the time of his appointment, your husband had telephoned the Pennsylvania State Association of Townships to inquire as to whether it would be considered illegal or a conflict of interest for him to be Secretary /Treasurer while you were serving as Auditor. You state that you were reassured at that time that there was no problem as far as the Pennsylvania State Association of Townships was concerned. However,, because it will soon be time for the elected Auditors to audit the records of the Secretary /Treasurer, you state that the 'Township Supervisors would like to be reassured than this Commission would find no impropriety in your being one of the three Auditors to audit the records. On February 13, 1992, in a telephone conversation with the Ms. Lucille Kidd February 18, 1992 Page 2 Assistant Counsel for this Commission, youiprovided the following additional facts for consideration in issuing an advisory to you. You clarified that your husband was not a Supervisor and he is no longer: the ._Township Secretary /Treasurer, as of the reorganization meeting held on January 7, 1992. Your husband's position as Secretary /Treasurer was a paid position. However, you as an Auditor had nothing to do with your husband's compensation' in that position because he was not a Supervisor. The only effect you would have had on your husband's service as Secretary /Treasurer which you can imagine is the fact that you would be auditing the books he had prepared. Finally, you note that you resigned your position as Auditor effective January 24, 1992, although you continue to request that an advisory be issued to you.' You state that the audit of the records of the Secretary /Treasurer was not commenced prior to your resignation, and you note that the audit of those records must be completed by March 1, 1992. To your knowledge a new Auditor has not yet been appointed to replace you. Discussion: It is initially noted that you are no longer an Auditor for Shirley . having resigned' that position effective January 24,_ 1992. -The- issue which you have raised would be deemed moot but for the fact that at the time you submitted your request for advice you were still an Auditor and were entitled to an advisory in this matter. As an Auditor for Shirley Township in Huntingdon County, Pennsylvania, you are a public - official als that term is defined under the Ethics Law, and-hence you are 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 Ms. Lucille Kidd February 18, 1992 Page 3 r 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 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 Ms. Lucille Kidd February 18, 1992 Page 4 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 discloser 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 tLe 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), then in that event participation is permissible provided the disclosure requirements noted above are followed. - In applying the above - provisions of the Ethics Law to your factual "circumstances, it is -noted that you have posed a very narrow question as to whether you - would have a conflict of interest in auditing the records which were prepared by your husband during his tenure as the Township Secretary /Treasurer. Pursuant to Section 3(a) of the Ethics Law set forth above, you would have a conflict of interest in any situation where the Ms. Lucille Kidd February 18, 1992 Page 5 use of the authority of your office as 'an Auditor, or the use of confidential information received by being in your iiublic office, would result in a private pecuniary benefit for you, any member of your immediate family, or a business with which you or a member of your immediate family is associated. In case, it is clear that your spouse isa member of your immediate family as that term is defined under the Ethics Law. There - no prohibition or restriction which would prohibit you from serving as Auditor while your husband is serving e4 Township Secretary /Treasurer. However, you could not participat in any matte which could result in :a financial benefit to your husband - nor.could you participate in any personal matter as tq him. ee, T1.ndall, Advice 89-599. As a public official, 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 participating in 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 3,0) as set forth above. The propriety of the propdsed 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, the.applicobility of the Second Class Township .Code Conclusion: As an. Auditor for Shirley , Township in Huntingdon County, Pennsylvania, you would be a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not_ you from serving as a Township Auditor while your husband is serving as the Secretary /Treasurer for the Township. You would have a conflict of interest should any matter come before the Auditors where the use of the authority of your 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. 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 �f Section . 3 (j) of the Ethics-Law would have to be fully satisfied. Lastly, thet,propriety of the proposed conduct has only been addressed under the Ethics Law. Ms. Lucille Kidd February 18, 1992 Page 6 Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding LAitiated by the Comnission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully till the material fats 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 request 'that the full Commission review this Advice. A personal appearance before 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 S2.12. ' incerely, 4 f. Vincent J. Dopko Chief Counsel