Loading...
HomeMy WebLinkAbout88-521 AmmermanFredric J. Ammerman District Attorney Office of District Attorney of Clearfield County Clearfield, PA 16830 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 February 29, 1988 ADVICE OF COUNSEL 88 - 521 Re: Conflict of Interest, Public Official, Immediate Family, District Attorney, Hiring Sister as Assistant District Attorney Dear District Attorney Ammerman: This responds to your letter of February 15, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restriction upon a District Attorney from hiring his sister as Assistant District Attorney. Facts: In your letter you state that you are the newly elected District Attorney of Clearfield County wherein your office is currently budgeted for one full -time District Attorney, a part -time first assistant and three other part -time assistants. Although you state that the elected office of District Attorney is a part -time position in Clearfield County, you are experiencing difficulties as to staff shortages in that your full -time assistant resigned and one of the part -time assistants has indicated that he will resign at the end of February, 1988. It is further stated by you that you have been unable to fill the position of full -time assistant due to the relatively small salary which is available from the county. Because of staff shortages, you note that you have been forced to turn your part -time District Attorney position into a full one which has had a detrimental effect on your private practice in which you are partners with your father in the firm of Ammerman and Ammerman. You also state that you are being paid $40,000.00 with medical benefits from the county for the position of District Attorney and that you have not accepted any additional compensation from your private practice to date although you have attempted to continue that practice by working on weekends and evenings. You further state that you received approximately $30,000.00 a year plus medical benefits from your private practice. Because of the restrictions on your time, you state that it became necessary for you and your father to hire an additional attorney to help with the private practice who is your sister, Beth E. Ammerman, a licensed Pennsylvania Attorney since 1984 who practices in Clarion County. After you note that your sister will start with your private Fredric J. Ammerman District Attorney February 29, 1988 Page 2 law firm in March, 1988, you state that you have been considering hiring your sister as an additional part -time Assistant District Attorney as of March 1, 1988. After noting that the salary for this position is $10,000.00 a year plus medical benefits, you indicate that if your sister would be hired as a part -time Assistant District Attorney, her salary would be paid to her directly by the county and would not be absorbed by the private practice. Lastly, you note that you are considering your sister for this position because you have been unable to find any other Clearfield County attorney who is willing to accept the relatively low salary as a part -time Assistant District Attorney. You conclude by requesting advice under the Ethics Act as to whether you may hire your sister as a part -time District Attorney when neither your private office nor yourself would receive any direct or indirect financial benefit from the hiring. Discussion: As a District Attorney for Clearfield County, you are a public official within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act. 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, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Section 3(a) basically provides that a public official or employee 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 or a business with which he is associated. 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. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law, Domalakes Opinion, 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff Opinion, 84 -015. Fredric J. Ammerman District Attorney February 29, 1988 Page 3 Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Since immediate family is defined to only include a spouse or minor dependent child, the provision of Section 3(a) would not include you sister. Therefore, under Section 3(a) of the Ethics Act and the definition of "immediate family ", there is no prohibition upon you as to hiring your sister. Section 3(b) of the Ethics Act provides: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Section 3(b) of the Ethics Act must be referenced in order to provide a complete respons'e to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. 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). Under the above provision of law, 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 Opinion, 80 -008; DeBenedictis Opinion, 86 -002. The parameters of the type of activity encompassed by this provision Fredric J. Ammerman District Attorney February 29, 1988 Page 4 are generally reviewed in light of the preamble to the Ethics Act which enunciates the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance of a conflict with the public trust. 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 Opinion, 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson Opinion, 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes Opinion, supra. In relation to the above cited sections of law, the Commission has determined that the definitional limitations applicable to the other 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'Rei14 Opinion, 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. Although there is no prohibition under Section 3(a) of the Ethics Act as previously noted as to the above activity, the Commission has determined under Section 3(d) that this type of activity creates the appearance of a conflict of interest where a public official uses his public office in favor of a relative who is not within the definition of "immediate family." Therefore, under Section 3(d) of the Ethics Act, you may not use your public office to hire your sister so as to avoid the appearance of a conflict of interest. Lastly, 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. Fredric J. Ammerman District Attorney February 29, 1988 Page 5 Conclusion: As a District Attorney for Clearfield County, you are a public official subject to the provisions of the State Ethics Act. Your sister is not a member of your "immediate family" as that term is defined in the Ethics Act. Although there is no prohibition under Section 3(a) of the Ethics Act upon the use of office for hiring your sister, under Section 3(d) of the Ethics Act, you may not use public office to hire your sister so as to avoid the appearance of a conflict of interest. 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. Sincerely, Vincent J'. Dopko General Counsel