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HomeMy WebLinkAbout88-515 CoulterJames P. Coulter, Esquire 128 West Diamond Street Butter, PA 16001 Dear Mr. Coulter: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: 1717) 783 -1610 February 24, 1988 ADVICE OF COUNSEL 88 -515 Re: Conflict of Interest, County Commissioner, Son Contracting with County Nursing Home This responds to your letter of January 19, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a county commissioner whose son operates a business which sells meat to a county nursing home. Facts: You state that you represent Robert J. Thompson who is a newly elected county commissioner in Butler County, Pennsylvania, and who is the former owner of a business known as "Thompson's Market" until said business was sold to Mr. Thompson's son at an arm's length sale approximately three or four years ago. You further state that Mr. Thompson's son, who is neither a minor nor dependent, continues to operate the business which has been selling meat to the Sunnyview Home, a nursing home that is operated by Butler County. You further state that Commissioner Thompson has no interest in his son's business either as an owner, shareholder, officer or director or otherwise. You conclude by requesting advice as to whether it would be appropriate under the Ethics Act for Commissioner Thompson to vote to approve a contract for the purchase of meat by the Sunnyview Home from Thompson's Market which is now owned and operated by his son. Discussion: As a county commissioner for Butler County, Robert J. Thompson is a "public official" as that term is defined in the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Section 3(a) of the Ethics Act provides: Section 3. Restricted 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, p member of his immediate family, or a business witn which he is associated. 65 P.S. 403(a). James P. Coulter, Esquire February 24, 1988 Page 2 Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Comm. , 531 A.2d 536 (1987). Of course, under this provision, a public official may not use his public position to secure any financial gain for himself or his immediate family unless it is provided for by law. Domalakes, 85 -010. The term "immediate family" is defined under the State Ethics Act as follows: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Since Commissioner Thompson's son is both of majority and is not a dependent, his son is not a member of Commissioner Thompson's "immediate family" as that term is defined under the State Ethics Act. Thus, since Commissioner Thompson's son is not a member of his immediate family, Section 3(a) of the Ethics Act would not prohibit him from voting to approve a contract for the purchase of meat for the county nursing home from his son's business. Section 2. Definitions. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 65 P.S. 402. Since Commissioner Thompson has no interest in his son's business, as either an owner, shareholder or officer, the above definition would not be implicated. Section 3(d) of the Ethics Act provide: Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). James P. Coulter, Esquire February 24, 1988 Page 3 The parameters of the activities encompassed by the above provision of the law generally are determined through the review and intent and purpose of the Ethics Act. The Ethics Act was promulgated in order to insure the public that the financial interest of their officials do not conflict with the public trust and do not create a conflict of interest or the appearance of a conflict. 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 Section 3(d). Leete Opinion, 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 Opi nion, 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 Opinion, 83 -012. Likewise, in Leete Opinion, 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 Advice, 85 -558; Ceraso Advice, 85 -575. Thus, although there is no prohibiton under Section 3(a) of the Ethics Act for Commissioner Thompson voting to approve this contract for his son's business, he must abstain under Section 3(d) so that there is not an appearance of a conflict of interests. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, regulation, or ordinance or other code of conduct has not been considered. Specifically not addressed in this advice is the applicability of the County Code. Conclusion: As a County Commissioner for Butler County, Robert J. Thompson is a public official subject to the provisions of the Ethics Act. Although Section 3(a) of the Ethics Act would not prohibit Commissioner Thompson from voting to approve a contract for the purchase of meat for a county nursing home from a business which is wholly owned and operated by his son, under Section 3(d) of the Ethics Act, he must abstain from voting so that there is not an appearance of a conflict. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. James P. Coulter, Esquire February 24, 1988 Page 4 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 w i l l 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. Si cerely, V� ncent Dopko General Counsel