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HomeMy WebLinkAbout14-569 Confidential ADVICE OF COUNSEL December 24, 2014 14-569 This responds to your letter dated December 1, 2014, by which you requested a confidential 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 prohibitions or restrictions with regard to the hiring of an individual to work in the office of a Member of the \[Chamber of the General Assembly\] where the individual’s \[type of immediate family member\] is already employed in the Member’s office. Facts: You have been authorized by State Legislator A, Individual B, and ndividual C to request a confidential advisory from the Pennsylvania State Ethics Commission on their behalf. You have submitted facts that may be fairly summarized as follows. State Legislator A was recently D as E for the F by the G and needs to increase the staff complement of his Harrisburg office in order to fulfill his obligations as E. Effective \[date\], Individual B began working in the H in the position of I. You have submitted a copy of the job specification for the position of I, which document is incorporated herein by reference. Individual C is the \[type of immediate family member\] of Individual B. State Legislator A would like to hire Individual C to fill the position of J. You have submitted a copy of the job specification for the position of J, which document is incorporated herein by reference. As staff in State Legislator A’s office, Individual C and Individual B would both report to State Legislator A, who would be responsible for their job evaluations. Individual C would have a supervisory role over other K, and Individual B may have a supervisory role over other staff. Individual C would not have any supervisory role as to Individual B. Individual B would not have any supervisory role as to Individual C. Individual C and Individual B would be located in different rooms in the same office suite. Based upon the above submitted facts, you pose the following questions: Confidential Advice, 14-569 December 24, 2014 Page 2 (1) Whether Individual B would be in violation of the Ethics Act if Individual C would be hired to work in State Legislator A’s office; (2) Whether Individual C would be in violation of the Ethics Act if he would be hired to work in State Legislator A’s office; and (3) In general terms, what guidelines are available to State Legislator A, as a supervisor, to prevent either Individual B or Individual C from violating the Ethics Act. You state that State Legislator A will not hire Individual C pending the issuance of an advisory in response to your request. 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. State Legislator A is a public official subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. In her capacity as I, Individual B is a public employee subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. If Individual C would be hired as J, he would in that capacity be a public employee subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. 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. 65 Pa.C.S. § 1103(a). The following terms 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 Confidential Advice, 14-569 December 24, 2014 Page 3 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. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, 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 from participation. The abstention requirement 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. As to state legislators, to the extent the activities of a state legislator would relate to “legislative actions” (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they would be constitutionally controlled and exempt from the purview of the Ethics Act and the State Ethics Commission. See, Mann, Opinion 07- 005; Confidential Opinion, 05-002; Corrigan, Opinion 87-001. Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Having established the above general principles, your specific questions shall now be considered. With regard to your first and second questions, you are advised that there is no basis in the submitted facts to conclude that either Individual B or Individual C would be in violation of the Ethics Act if Individual C would be hired to work in State Legislator A’s office. The decision to hire Individual C would be made by State Legislator A without any involvement by Individual B. Additionally, if such hiring would occur, neither Individual B nor Individual C would have any supervisory role as to the other. Your third question is general and has been addressed above to the extent that it can be addressed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Confidential Advice, 14-569 December 24, 2014 Page 4 Conclusion: Based upon the submitted facts that: (1) State Legislator A was recently D as E for the F by the G and needs to increase the staff complement of his Harrisburg office in order to fulfill his obligations as E; (2) effective \[date\], Individual B began working in the H in the position of I; (3) Individual C is the \[type of immediate family member\] of Individual B; (4) State Legislator A would like to hire Individual C to fill the position of J; (5) as staff in State Legislator A’s office, Individual C and Individual B would both report to State Legislator A, who would be responsible for their job evaluations; (6) Individual C would have a supervisory role over other K, and Individual B may have a supervisory role over other staff; (7) Individual C would not have any supervisory role as to Individual B; (8) Individual B would not have any supervisory role as to Individual C; and (9) Individual C and Individual B would be located in different rooms in the same office suite, you are advised as follows. State Legislator A 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., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. In her capacity as I, Individual B is a public employee subject to the Ethics Act and the Regulations of the State Ethics Commission. If Individual C would be hired as J, he would in that capacity be a public employee subject to the Ethics Act and the Regulations of the State Ethics Commission. You are advised that there is no basis in the submitted facts to conclude that either Individual B or Individual C would be in violation of the Ethics Act if Individual C would be hired to work in State Legislator A’s office. 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