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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