HomeMy WebLinkAbout09-565 KearneyThomas L. Kearney, III, Esquire
Kearney & Marshall, PC
46 East Philadelphia Street
York, PA 17401 -1122
Dear Mr. Kearney:
ADVICE OF COUNSEL
July 21, 2009
§ 1420. Assistant, special assistant and deputy
assistant district attorneys; number;
compensation.
(a) The district attorney may appoint such number
of assistants, special assistants or deputy assistants,
learned in the law, to assist him in the discharge of his
duties, as is fixed by the salary board of the county. The
09 -565
This responds to your letter dated June 4, 2009, by which you requested an
advisory from the Pennsylvania State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., would impose any prohibitions or restrictions upon a district
attorney with regard to hiring his son for the position of assistant district attorney.
Facts: You have requested an advisory from the Pennsylvania State Ethics
Commission based upon the following submitted facts.
You state that you are the nominee for the office of District Attorney of York
County ( "the County ") on both ballots for the election in November 2009.
Your son recently graduated from law school, and he will be taking the
Pennsylvania Bar Examination. You state that your son has expressed interest in
serving as an assistant district attorney for the County. You state that if your son were
to be hired, you would have little day -to -day contact with him, and you would not be his
supervising attorney.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit you to hire your son for the position of assistant district attorney with the County.
Administrative notice is taken of the following pertinent provisions of the County
Code:
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July 21, 2009
Page 2
salary board shall fix the salary of such assistants, special
assistants and deputy assistants.
§ 1620. Salaries and compensation
The salaries and compensation of county officers
shall be as now or hereafter fixed by law. The salaries and
compensation of all appointed officers and employes who
are paid from the county treasury shall be fixed by the salary
board created by this act for such purposes... .
§ 1623. Number and compensation of officers, deputies,
assistants, clerks and employes
The board, subject to limitations imposed by law, shall
fix the compensation of all appointed county officers, and the
number and compensation of all deputies, assistants, clerks
and other persons whose compensation is paid out of the
county treasury ... .
§ 1625. Procedure and action of board
(a) Except as herein otherwise provided, whenever
the board shall consider the number or salaries of the
deputies or other employes of any county officer or agency,
such officer or the executive head of such agency shall sit as
a member of the board, as long as any matter affecting his
office or agency is under consideration and no longer.
16 P.S. §§ 1420(a), 1620, 1623, 1625(a).
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 requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester 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 requester 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 requester has truthfully disclosed all of the material facts.
Upon taking office as the District Attorney of the County, you would become a
public official subject to the provisions of the Ethics Act.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
(j) Voting conflict. - -Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the following
procedure 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
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July 21, 2009
Page 3
taken, publicly announce and disclose 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.
65 Pa.C.S. §§ 1103(a), (j).
The following terms related to Section 1103(a) are defined in the Ethics Act 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
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.
65 Pa.C.S. § 1102.
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited 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 /public employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated.
In each instance of a conflict of interest, the public official /public employee would
be required to abstain fully from participation. The abstention requirement would not be
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July 21, 2009
Page 4
limited merely to voting, but would extend to any use of authority of office, including, but
not limited to, discussing, conferring with others, and lobbying for a particular result.
Juliante, Order 809.
Subject to certain statutory exceptions, in each instance of a voting conflict,
Section 1103(j) of the Ethics Act requires the public official /public 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.
Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows:
§ 1103. Restricted activities
(f) Contract. - -No public official or public employee or
his spouse or child or any business in which the person or
his spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with
which the public official or public employee is associated or
any subcontract valued at $500 or more with any person
who has been awarded a contract with the governmental
body with which the public official or public employee is
associated, unless the contract has been awarded through
an open and public process, including prior public notice and
subsequent public disclosure of all proposals considered and
contracts awarded. In such a case, the public official or
public employee shall not have any supervisory or overall
responsibility for the implementation or administration of the
contract. Any contract or subcontract made in violation of
this subsection shall be voidable by a court of competent
jurisdiction if the suit is commenced within 90 days of the
making of the contract or subcontract.
65 Pa.C.S. § 1103(f).
The term "contract" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Contract." An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
arrangement between the State or political subdivision as
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
65 Pa.C.S. § 1102.
Section 1103(f) does not operate to make contracting with the governmental
body permissible where it is otherwise prohibited. Rather, where a public official /public
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the governmental body, or
subcontracting with any person who has been awarded a contract with the
governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an
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July 21, 2009
Page 5
"open and public process" be observed as to the contract with the governmental body.
Section 1103(f) of the Ethics Act also requires that the public official /public employee
may not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows. Your son is a member of your "immediate family" as that term is
defined by the Ethics Act. Upon taking office as the District Attorney of the County, you
generally would have a conflict of interest under Section 1103(a) of the Ethics Act in
matters that would financially impact you, a member of your immediate family such as
your son, or a business 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
fully from participation and in the instance of a voting conflict, to abstain fully and satisfy
the disclosure requirements of Section 1103(j) of the Ethics Act.
Turning to your specific inquiry, you are advised as follows.
Per the above -cited provisions of the County Code, the authority of the office of
District Attorney includes the authority to appoint assistant district attorney(s) and to sit
as a member of the County Salary Board when the Board sets the salary for such
position(s). Section 1103(a) of the Ethics Act would prohibit you from hiring your son for
the position of assistant district attorney for the County and /or participating as a member
of the County Salary Board in setting his salary, because such action(s) would
constitute use(s) of authority of your public office for the private pecuniary benefit of a
member of your immediate family. See, Yatron, Opinion 02 -008; Confidential Opinion,
02 -004; Holvey, Orders 1039, 1039 -2.
The submitted facts do not indicate whether there is a pre- existing mechanism in
place for delegation of the District Attorney's authority in the event of a conflict of
interest. You are advised that if there is no pre - existing conflict mechanism in place
specifying how and by whom the District Attorney's authority should be exercised in the
event of a conflict of interest, Section 1103(a) of the Ethics Act would prohibit you from
delegating to a subordinate the authority that you would have as the District Attorney
with respect to the appointment of your son to the position of assistant district attorney.
See, Confidential Opinion, 02 -004.
Turning to Section 1103(f) of the Ethics Act, you are advised as follows. To the
extent that the proposed hiring of your son as an assistant district attorney with the
County would involve a contract with the District Attorney's Office valued in excess of
$500, the restrictions of Section 1103(f) would be applicable. Where Section 1103(f) of
the Ethics Act would apply, the hiring of your son as an assistant district attorney for the
County would necessarily result in a transgression of Section 1103(f) where you, as
District Attorney, would inherently have supervisory or overall responsibility as to your
son.
Act.
The propriety of the proposed conduct has only been addressed under the Ethics
Conclusion: Upon taking office as the District Attorney of York County ( "the
County "), you would become a public official subject to the provisions of the Public
Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. Your son is a
member of your "immediate family" as that term is defined by the Ethics Act. Upon
taking office as the District Attorney of the County, you generally would have a conflict
of interest under Section 1103(a) of the Ethics Act in matters that would financially
impact you, a member of your immediate family such as your son, or a business 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 fully from participation and in the
instance of a voting conflict, to abstain fully and satisfy the disclosure requirements of
Kearney, 09 -565
July 21, 2009
Page 6
Section 1103(j) of the Ethics Act. Section 1103(a) of the Ethics Act would prohibit you
from hiring your son for the position of assistant district attorney for the County and /or
participating as a member of the County Salary Board in setting his salary. If there is no
pre- existing conflict mechanism in place specifying how and by whom the District
Attorney's authority should be exercised in the event of a conflict of interest, Section
1103(a) of the Ethics Act would prohibit you from delegating to a subordinate the
authority that you would have as the District Attorney with respect to the appointment of
your son to the position of assistant district attorney. Where Section 1103(f) of the
Ethics Act would apply, the hiring of your son as an assistant district attorney for the
County would necessarily result in a transgression of Section 1103(f) where you, as
District Attorney, would inherently have supervisory or overall responsibility as to your
son.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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,
Robin M. Hittie
Chief Counsel