HomeMy WebLinkAbout85-575 CerasoSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
August 20, 1985
ADVICE OF COUNSEL
Joseph W. Ceraso, Esquire
618 Wallace Street
Vandergrift, PA 15690 -0866
Re: Borough Councilman, Voting, Brother Chief of Police
Dear Mr. Ceraso:
85 - 575
This responds to your letter of August 5, 1985, wherein you requested the
advice of the State Ethics Commission..
Issue: Whether a borough councilman may participate in the hiring of a chief
of police when the councilman's brother is an applicant.
Facts: As Solicitor for the Borough of Vandergrift, you have requested the
advice of the State Ethics Commission on behalf of Borough Councilman Dennis
DelleDonne. Mr. DelleDonne's brother is an applicant for the position of
chief of police in the borough. You ask what conditions, if any, are placed
upon the conduct of a member of council whose brother is an applicant for the
position of chief of police of the same borough to take or recommend actions
or to participate in decisions of the borough relative to said appointment.
Discussion: As a member of borough council, Mr. DelleDonne is clearly a
public employee as that term is defined in the State Ethics Act. 65 P.S.
§402. As such, his conduct must conform to the requirements thereof. Kilmer,
79 -037; Davis, 84 -012.
Generally, the State Ethics Act provides that:
Section 3. P9stricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
Joseph W. Ceraso, Esquire
August 20, 1985
Page 2
Additionally, that Act defines member of ones immediate family as
f o l l o w s :
Section 2. Definitions.
"Immediate family." A spouse residing in the person's
household and minor dependent children. 65 P.S. 402.
As can be seen, the relationship between the councilman and the applicant
does not fall within the definition above. Thus, there would appear to be no
prohibitions placed upon the councilman under Section 3(a).
The Ethics Commission, however, is also empowered to address other areas
of possible conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinger,
80 -008; Yaw, 85 -011. The parameters of the type of activity encompassed by
this provision are generally reviewed in light of the preamble to the Ethics
Act which enunciates the legislative intent of the Act. A public official or
employee, pursuant to this provision, is to ensure that their personal
financial interests present neither a conflict nor the appearance of a
conflict with the public trust. 65 P.S. §401. Such a conflict may exist
where an individual represents one or more adverse interests, Alfano, 80 -007;
where an individual serves in positions that are incompatible or conflicting;
Nelson, 85 -009, or where such an official or employee accepts compensation to
which he is not entitled. Domalakes, 85 -010.
In relation to the above cited sections of law, the Commission has
determined that the definitional limitations applicable to these Sections of
the Act are not relevant to questions addressed under the above provision.
Leete, 82 -005. As such, the Commission has placed restrictions upon various
actions of public officials and employees when acting upon matters that
involve relatives outside of the previously cited definition. O'Reilly,
83 -012.
Thus, for example, the Commission has determined that a public official
may not participate in the employment selection process where the official's
adult son is an applicant. See O'Reilly, 83 -012.
Likewise, in Leete, 82 -005, the Commission concluded that a county
commissioner could not sit on a salary board and vote the salary of her
brother as Director of the county planning agency without engaging in conduct
which would appear to conflict with the public trust. See also Lewis,
85 -558.
Based upon the foregoing, this councilman may not participate, to any
degree, in the borough's consideration of the employment application or the
selection process in general.
Joseph W. Ceraso, Esquire
August 20, 1985
Page 3
It is also advised that the councilman not participate in relation to any
other applicants for this position. This is so because a negative vote on the
employment of other potential employees may be perceived as an effort to
obstruct the selection process. See O'Reilly, 83 -012.
The Commission's prior ruling to this effect was grounded upon the
concept that an official under such circumstances could effectively deny all
applications other than the one in which he is interested, thereby insuring
the availability of the posiiton for the person in whom he was interested.
In addition to abstaining from the borough's action in this matter, the
councilman should also publicly disclose such abstention, the reasons
therefore, and have such recorded in the appropriate borough records.
Conclusion: A borough council member may not, consistent with the State
Ethics Act and the opinions of the State Ethics Commission, participate to any
extent in the consideration and selection of a borough chief of police where
the council member's brother is an applicant.
Pursuant to Section 7(9)(ii), this 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, providing the requestor 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 request that the full Commission review this Advice. A
personal appearance before the Commission will be scheduled and a formal
Opinion from the Commission will be issued. Any such appeal must be made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
JJC /sfb
Sincerel
uohn - ontino
General Counsel