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Home My WebLink About10-564 Confidential ADVICE OF COUNSEL April 2, 2010 10-564 This responds to your letter dated February 16, 2010, by which you requested a confidential advisory from the Pennsylvania State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., a state legislator would be permitted to hire the state legislator’s Relative A as a B with the state legislator’s C. Facts: You request a confidential advisory from the Pennsylvania State Ethics Commission on behalf of State Legislator D, hereinafter referred to as “the State Legislator.” You have submitted facts, the material portion of which may be fairly summarized as follows. You state that the State Legislator’s E C is shorthanded. You further state that the State Legislator wishes to hire the State Legislator’s Relative A as a B with the E C. Based upon the above submitted facts, you ask whether the Ethics Act would permit the State Legislator to hire Relative A as a B with the State Legislator’s E C. 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. The State Legislator is a public official as that term is defined by the Ethics Act, and therefore the State Legislator is subject to the provisions of the Ethics Act. 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. Confidential Advice, 10-564 April 2, 2010 Page 2 65 Pa.C.S. § 1103(a). 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 response to your specific question, you are advised as follows. Relative A is not a member of the State Legislator’s “immediate family” as that term is defined in the Ethics Act. Cf., Pulice v. State Ethics Commission, 713 A.2d 161 (Pa. Commw. Ct. 1998), allocatur denied, 557 Pa. 642, 732 A.2d 1211 (1998) (Holding that a relative not encompassed by the family relationships listed in the Ethics Act’s definition of the term “immediate family”—in that case, an in-law—would not be considered a member of immediate family). Since Relative A is not a member of the State Legislator’s immediate family, Section 1103(a) of the Ethics Act would not prohibit the State Legislator from hiring Relative A as a B with the State Legislator’s E C. 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. Confidential Advice, 10-564 April 2, 2010 Page 3 Conclusion: As a state legislator, State Legislator D, hereinafter referred to as “the State Legislator,” is 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 State Legislator’s Relative A is not a member of the State Legislator’s “immediate family” as that term is defined in the Ethics Act. Since Relative A is not a member of the State Legislator’s immediate family, Section 1103(a) of the Ethics Act would not prohibit the State Legislator from hiring Relative A as a B with the State Legislator’s E C. 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