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Home My WebLink About88-525 OzalasMichael L. Ozalas, Esquire 41 Broadway Jim Thorpe, PA 18229 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 March 1, 1988 ADVICE OF COUNSEL 88 -525 Re: Conflict of Interest, Public Official, Immediate Family, Grandson Dear Mr. Ozalas: This responds to your letter of January 25, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restriction upon a borough councilmember from voting or participating for his grandson regarding a position on the borough work force. Facts: You state that you are the solicitor for the Borough of Palmerton and represent Mr. Claire Fatzinger who is a borough councilmember. You further state that Councilmember Fatzinger's grandson has applied for a position of employment with the borough on its work force. You conclude by requesting advice under the Ethics Act as to whether Councilmember Fatzinger may participate in the discussions or the decision to hire his grandson for the position on the borough workforce. Discussion: As a councilmember for Palmerton Borough, Mr. Fatzinger is 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, he is 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 Michael L. Ozalas, Esquire March 1, 1988 Page 2 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. Comm. , 531 A.2d 536 (198 - 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. 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 a grandson. Therefore, under Section 3(a) of the Ethics Act and the definition of "immediate family ", there is no prohibition upon the participation or hiring as to one's grandson. 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). ion 3(b) of the Ethics Act must be referenced in order to provide a response to your inquiry. Under Section 3(b) of the Ethics Act cited ich a public official or employee must observe, a public official or must neither offer nor accept anything of value on the understanding Sect complete above, wh employee Michael L. Ozalas, Esquire March 1, 1988 Page 3 or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exi st 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 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'Reilly 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. Michael L. Ozalas, Esquire March 1, 1988 Page 4 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, Mr. Fatzinger may not use public office to participate or to hire his grandson 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. Conclusion: As public official grandson is not the Ethics Act. Ethics Act upon the Ethics Act, his grandson so a councilmember for Palmerton Borough, Mr. Fatzinger is a subject to the provisions of the State Ethics Act. His a member of your "immediate family" as that term is defined in Although there is no prohibition under Section 3(a) of the the use of office for hiring a grandson, under Section 3(d) of Mr. Fatzinger may not use public office to participate or hire 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 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. Sincerely, intent J. Dopko General Counsel itt