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Home My WebLink About09-565-S KearneyThomas L. Kearney, III, Esquire Kearney & Marshall, PC 46 East Philadelphia Street York, PA 17401 -1122 ADVICE OF COUNSEL December 17, 2009 09 -565 -S Dear Mr. Kearney: This responds to your letter dated October 28, 2009, by which you requested supplemental advice 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: By letter dated June 4, 2009, you initially requested an advisory from the Pennsylvania State Ethics Commission. In response to your initial advisory request, Kearney, Advice 09 -565 was issued to you on July 21, 2009, which Advice is incorporated herein by reference. Based upon the facts that you submitted, Advice of Counsel 09 -565 determined, in pertinent part, as follows: 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.... 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. Kearney, 09 -565 -S December 17, 2009 Page 2 Kearney, Advice of Counsel 09 -565, at 6. In your October 28, 2009, advisory request letter, you state that you have been advised by the York County ( "County ") Human Resources Director that "there exists precedent for being consulted on hiring decisions regarding family members by row office holders." October 28, 2009, Advisory Request Letter, at paragraph 3. Along with your October 28, 2009, advisory request letter, you have submitted copies of the following documents: (1) Section M of The York County Employee Handbook" ( "the County Handbook "), pertaining to employment of relatives; (2) a letter to you dated October 7, 2009, from Robert J. Nace ( "Mr. Nace "), Executive Director of the County Department of Human Resources; and (3) the pre- existing written policy of the County District Attorney's Office pertaining to conflict of interest (also referred to herein as `the Office Conflict of Interest Clause"). Section M of the County Handbook provides, in pertinent part, as follows: M. Employment of Relatives The County of York permits the employment of qualified relatives of employees as long as such employment does not, in the opinion of the County of York, create actual or perceived conflicts of interest. For purposes of this policy, "relative" is defined as a spouse, child, parent, sibling, grandparent, grandchild, aunt, uncle, first cousin, or corresponding in -law or "step" relation. The County of York will exercise sound business judgment in the placement of related employees in accordance with the following guidelines: 1 Individuals who are related by blood or marriage are permitted to work in the same County of York agency, provided no direct reporting or supervisory /management relationship exists. That is, no employee is permitted to work within the "chain of command" of a relative such that one relative's work responsibilities, salary, or career progress could be influenced by the other relative. 2. No relatives are permitted to work in the same department or in any other positions in which the County of York believes an inherent conflict of interest may exist. This policy applies to the County itself and does not affect contractors and /or subcontractors. The policy applies to all categories of County of York employment, including regular, temporary, per diem, and part -time classifications. The County Handbook, Section M. Mr. Nace's letter to you dated October 7, 2009, states, in pertinent part, as follows: Kearney, 09 -565 -S December 17, 2009 Page 3 This is in response to your request regarding a mechanism that would address a conflict of interest in the delegation of the District Attorney's authority with regard to hiring. The County's District Attorney may appoint assistants, special assistants or deputy assistants as fixed by the salary board. With regard to conflicts of interest pertinent to salary board activities; the County does not have a policy. However, it has been the practice of salary board members to voluntarily disqualify themselves from a vote on a personnel action whereby a conflict or perceived conflict may exist. Nace letter of October 7, 2009, at paragraph 1. The Office Conflict of Interest Clause provides as follows: Conflict of Interest Clause Re: County of York Policy Manual II N: Employment of Relatives The District Attorney, acting in accordance with 16 P.S. § 1620, may allow relatives of employees (those related by blood or marriage) to work in his /her department. It is understood and agreed that the District Attorney, consistent with sound discretion, possess [sic] the right, in accordance with Pennsylvania law, to manage all operations, including the direction of the work force, to include the right to hire, discharge, or discipline. Said employee shall not directly supervise his /her relative, including advising on matters relating to hiring, discharge, or discipline *. If a situation arises in which the elected District Attorney has a perceived conflict of interest * *, all duties, powers and privileges given by law to the District Attorney, under 16 P.S. 1620 shall be delegated to the First Assistant District ttorney regarding said relative, pursuant to 16 P.S. §1421. In the event a conflict of interest occurs with the elected District Attorney concerning hiring, promotion, discipline or termination, the First Assistant District Attorney, shall seek the opinion of the Director of Human Resources or his designee, and shall comply with that opinion. If the nature of this conflict involves a Salary Board matter, the District Attorney shall surrender his vote, thus leaving the decision to the three County Commissioners and County Controller. * Should the chain of command normally require an employee to supervise his /her relative, then said relative shall be supervised by the employee's direct supervisor. ** concerning the employment of his /her relative The Office Conflict of Interest Clause. In light of the above additional facts, you request a supplemental advisory. Kearney, 09 -565 -S December 17, 2009 Page 4 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. It is further initially noted that having incorporated herein by reference Kearney, Advice of Counsel 09 -565, this Supplemental Advice will not reiterate at length the quotations, citations and commentary as to the Ethics Act set forth within the Advice. In response to your request for supplemental advice, you are advised as follows. Kearney, Advice of Counsel 09 -565 correctly stated that 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. Kearney, Advice of Counsel 09 -565 further correctly stated 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 for the County. In considering the additional submitted facts, it appears that pursuant to the pre- existing Office Conflict of Interest Clause, your authority to appoint assistant district attorney(s) could be delegated to the First Assistant District Attorney, who would be required to seek the opinion of the Director of Human Resources or his designee as to the hiring of your son and to comply with such opinion. You are advised that the proposed hiring of your son as an assistant district attorney for the County could proceed without you transgressing Section 1103(a) of the Ethics Act where: (1) under the pre - existing Office Conflict of Interest Clause, you would be completely removed from the decision making process with regard to hiring, promoting, disciplining, terminating and otherwise supervising your son, and all such decisions would be made by the County Director of Human Resources through binding opinions rendered to the First Assistant District Attorney; and (2) you would abstain from any use of authority of office that would negatively impact competitor(s) of your son for an assistant district attorney position. See, Pepper, Opinion 87 -008. As noted by Advice of Counsel 09 -565, to the extent that the proposed hiring of your son as an assistant district attorney for 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 and likewise would prohibit you from having supervisory or overall responsibility as to your son as an assistant district attorney. 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. The proposed hiring of your son as an assistant district attorney for the bounty could proceed without you transgressing Section 1103(a) of the Ethics Act where: (1) under the pre- existing written policy of the County District Attorney's Office pertaining to conflict of interest (also referred to herein as the Office Conflict of Interest Clause "), you Kearney, 09 -565 -S December 17, 2009 Page 5 would be completely removed from the decision making process with regard to hiring, promoting, disciplining, terminating and otherwise supervising your son, and all such decisions would be made by the County Director of Human Resources through binding opinions rendered to the First Assistant District Attorney; and (2) you would abstain from any use of authority of office that would negatively impact competitor(s) of your son for an assistant district attorney position. To the extent that the proposed hiring of your son as an assistant district attorney for 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 and likewise would prohibit you from having supervisory or overall responsibility as to your son as an assistant district attorney. Act. The propriety of the proposed conduct has only been addressed under the Ethics 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 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