HomeMy WebLinkAbout05-512ADVICE OF COUNSEL
February 24, 2005
Re: Simultaneous Service; First Class Township; Finance Officer and Treasurer.
05 -512
This responds to your letter of January 21, 2005, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., imposes any prohibition or restrictions upon a finance officer for
a first class township with regard to simultaneously serving as township treasurer.
Facts: You serve as Counsel for Township A ( "the Township "), a first class
township located in County B. You request an advisory from the State Ethics
Commission on behalf of Individual C, the Township's Finance Officer. Individual C is
interested in seeking election to the office of Township Treasurer. You ask whether the
Ethics Act would prohibit Individual C from simultaneously serving as Township Finance
Officer and Township Treasurer.
You reference certain provisions of the First Class Township Code ( "Code "), 53
P.S. § 55101 et seq., as relevant to your inquiry.
You state that Section 55511 of the Code prohibits the Township Treasurer from
holding any other township office" except that of tax collector. 53 P.S. § 55511. You
note that the Code does not define what constitutes a "township office." You opine that
the term "township office" is limited to the offices specifically identified in the Code:
Commissioner, Secretary, Solicitor, Engineer, Auditor, Assessor, and Manager.
While you acknowledge that Section 56503 of the Code gives the Township
Board of Commissioners the power to create any Township office "which may be
deemed necessary for the good government and interests of the township," 53 P.S. §
56503, you assert that the position of Township Finance Officer was not created as a
"township office." You contend that it is an employment position, and that the title
"Finance Officer" is simply a job title.
You note that the Township Finance Officer reports to the Township Manager.
You have submitted a copy of the job description for the position of Township Finance
Officer, which document is incorporated herein by reference. The Finance Officer's duties
include, inter alia, managing and directing the work of the finance department of the
Township; planning for coordination and preparation of the Township budget; preparing
financial reports; reviewing and evaluating employee services, programs and personnel
policies; and monitoring cash flow and investments. It is noted that paragraphs 4 and 7 of
Confidential Advice, 05 -512
February 24, 2005
Page 2
the submitted job description establish that the Township Finance Officer reviews the
work of the Township Treasurer as part of a checks - and - balances system:
[Quote].
Job Description for Finance Officer, paragraphs 4, 7.
Referencing Sections 55801 — 55809 of the Code, you state that the duties of the
Treasurer generally consist of collecting taxes levied by the Township and paying funds
authorized by the Commissioners. You state your belief that because the Finance
Officer and Treasurer do not share any duties or responsibilities, there is no inherent
conflict between the two positions.
You pose the following questions:
(1) Whether Section 55511 of the Code would prohibit the Township Finance Officer
from simultaneously serving as the Township Treasurer; and
(2) Whether there would be any inherent conflict between the duties of the Township
Finance Officer and the Township Treasurer such that the Ethics Act would
preclude simultaneous service in the two positions.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based
upon the facts that the requestor has submitted. In issuing the advisory based upon the
facts that the requestor has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not been
submitted. It is the burden of the requestor to truthfully disclose all of the material facts
relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense
to the extent the requestor has truthfully disclosed all of the material facts.
As the Township Finance Officer, Individual C is a public official /public employee
subject to the provisions of the Ethics Act. 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
The following terms that pertain to conflicts of interest under the Ethics Act are
defined as follows:
§ 1102. 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. The term 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
Confidential Advice, 05 -512
February 24, 2005
Page 3
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.
65 Pa. C. S. § 1102.
In applying the above provisions of the Ethics Act to the question of simultaneous
service, it is initially noted that the General Assembly has the constitutional power to
declare by law which offices are incompatible. Pa. Const. Art. 6, §2. Although the State
Ethics Commission does not have the express statutory jurisdiction to interpret such
other laws, it may review the Ethics Act to determine that a conflict exists based upon
the statutory incompatibility. Kinq, Opinion No. 85 -025. A conflict of interest exists under
the Ethics Act where a pecuniary benefit or financial gain (such as salary, benefits, and
the like) is derived as a result of holding incompatible positions simultaneously. See,
Kinq, Opinion 85 -025.
Even when there is no statutorily declared incompatibility, if simultaneous service
would place the public official /public employee in a continual state of conflict, such as
where in one position he would be accounting to himself in another position on a
continual basis, there would be an inherent conflict (See, Johnson, Opinion 86 -004).
Where an inherent conflict would exist, it would appear to be impossible, as a practical
matter, for the public official /public employee to function in the conflicting positions
without running afoul of Section 1103(a).
You have accurately identified the following provisions of the First Class
Township Code as relevant to your inquiry:
§ 55511. Eligibility
The same person may hold the office of township
treasurer and treasurer of the school district, but no township
treasurer shall hold any other township office except that of
tax collector.
53 P.S. § 55511 (Emphasis added).
§ 56503. Officers, positions and departments
[The board of township commissioners shall have power - -]
To create any office, position or department which
may be deemed necessary for the good government and
interests of the township ... .
53 P.S. § 56503 (Emphasis added).
With regard to "statutory incompatibility," the above provisions of the Code, on
their face, would prohibit the Township Treasurer from holding any other Township
office except that of tax collector. However, the Code does not provide a clear answer
to the question of whether the position of Finance Officer would be considered a
"township office."
Your view that the term "township office" is limited to the offices specifically
identified in the Code appears to be contradicted by Section 56503 of the Code, which
Confidential Advice, 05 -512
February 24, 2005
Page 4
on its face, gives the Township Board of Commissioners the power to create offices
beyond those specifically identified. 53 P.S. § 56503. Furthermore, although you have
factually represented that the position of Township Finance Officer is an "employment
position," there is no indication in the Code that township offices may not be
employment positions.
Since the State Ethics Commission does not have the statutory jurisdiction to
interpret the Code, this Advice may not answer the question of whether the position of
Township Finance Officer would be considered a "township office" and therefore
incompatible with the position of Township Treasurer under Section 55511 of the Code.
However, in considering your second question, you are advised that pursuant to
Section 1103(a) of the Ethics Act, the positions of Township Finance Officer and
Township Treasurer would be inherently incompatible. This conclusion is based upon
paragraphs 4 and 7 of the submitted job description, which establish that the Township
Finance Officer reviews the work of the Township Treasurer as part of a checks -and-
balances system. (See, e.q., McCain, Opinion 02 -009; see also, Johnson, Opinion 86-
004; Nelson, Opinion 85 -009). Given that an inherent conflict would exist, it would
appear to be impossible, as a practical matter, for Individual C to function in the
conflicting positions without running afoul of Section 1103(a) of the Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion: As the Finance Officer for Township A in County B, Individual C is a
public official /public employee subject to the provisions of the Ethics Act. Based upon
the submitted facts, Individual C may not, consistent with Section 1103(a) of the Ethics
Act, simultaneously serve as Township Finance Officer and Township Treasurer
because these positions are inherently incompatible.
Pursuant to Section 1107(11), an 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, provided 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). 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.
Sincerely,
Vincent J. Dopko
Chief Counsel