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Home My WebLink About11-509 Ellis ADVICE OF COUNSEL March 4, 2011 Elwin Ellis 4755 East Rush to Elk Lake Road Montrose, PA 18801 11-509 Dear Mr. Ellis: This responds to your letters dated January 9, 2011, and January 13, 2011 (postmarked January 14, 2011, and received January 19, 2011), 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.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon a township supervisor’s uncle with regard to seeking election as a township supervisor or being employed as a laborer with the township. Facts: Your nephew currently serves as a Supervisor for Dimock Township (“Township”), located in Susquehanna County, Pennsylvania. You state that you would like to run for office as a Township Supervisor. You further state that if you would not be successful in a campaign for a Supervisor position, you would like to work for the Township as a laborer. Given that your nephew is a Township Supervisor, you ask whether the Ethics Act would permit you to seek election as a Township Supervisor or to be employed as a laborer with the Township. 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. 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. Ellis, 11-509 March 4, 2011 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 that the Ethics Act would not prohibit you from seeking election as a Township Supervisor, or from being employed as a laborer with the Township, while your nephew is serving as a Township Supervisor. This Advice is limited to addressing the specific question posed 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 Second Class Township Code. Conclusion: The Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq., would not prohibit you from seeking election as a Supervisor for Dimock Township (“Township”), Susquehanna County, Pennsylvania, or from being employed as a laborer with the Township, while your nephew is serving as a Township Supervisor. 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 Ellis, 11-509 March 4, 2011 Page 3 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