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HomeMy WebLinkAbout06-540-CL BrannDavid J. Brann, Esquire Brann, Williams, Caldwell & Sheetz 111 West Main Street P.O. Box 277 Troy, PA 16947 -0277 Dear Mr. Brann: ADVICE OF COUNSEL May 24, 2006 06 -540 -C L This responds to your letter of March 30, 2006 by which you requested a clarifying advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act (Ethics Act), 65 Pa. .S. § 1101 et seq., would impose any prohibition or restrictions upon a county auditor with regard to simultaneously serving or being employed as a housing authority board director if the county is a member of the housing authority. Facts: By letter dated February 27, 2006, you initially sought an advisory from the tate Ethics Commission. In response to your request, Brann, Advice of Counsel, 06- 540 was issued to you on April 7, 2006, which advice is incorporated herein by reference. On April 24, 2006, you sought clarification as to whether Susan Storch ( "Starch ") would still have a conflict of interest in simultaneously serving as an Auditor for Bradford County ( "County ") and Director on the Bradford /Tioga Housing Authority Board when the Authority Board is funded by the United States Department of Housing and Urban Development ( "HUD ") and is not subject to a County audit. Discussion: In that Brann, Advice of Counsel, 06 -540 is incorporated herein by reference, the quotations, citations and commentary as to the Ethics Act set forth within that Advice will not be repeated here. In response to your request for clarification, as noted in the base advice, 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. The Commission has determined that if a particular statutory enactment prohibits an official from receiving a particular pecuniary benefit or financial gain, then that official's receipt of same, through the authority of public office, is unauthorized in law and hence, contrary to Section 1103(a) of the Ethics Act. In the Dunn /Borger, 06- 540 -CL May 24, 2006 Page 2 instant matter, given that a conflict of interest exists based upon an incompatibility provision of the County Code, the fact that the Authority Board is funded by HUD and is not subject to County audit is of no legal consequence. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: Brann, Advice of Counsel, 06 -540, is incorporated herein by reference. Susan Storch ( "Starch "), a public official in her capacity as an Auditor for Bradford County ( "County "), would have a conflict of interest in simultaneously serving as a County Auditor and Director on the Bradford/Tioga Housing Authority Board based upon an incompatibility provision of the County Code. The fact that the Authority Board is funded by the United States Department of Housing and Urban Development ( "HUD ") and is not subject to a County audit, is not legally relevant. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. 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