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HomeMy WebLinkAbout88-533 MackoDear Mr. Macko: Michael J. Macko, Esquire 325 Memorial Boulevard P. O. Box 630 Connellsville, PA 15425 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 March 24, 1988 ADVICE OF COUNSEL ,,88-533 Re: Conflict of Interest, Public Official, Immediate Family, employment by Tax Bureau This responds to your letter of February 8, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions upon a board member of a Tax Bureau as to the employment of a member of his family by the Tax Bureau. Facts: In your letter you state that a Tax Bureau has been formed by several adjoining school districts and municipalities pursuant to Act 511. You then ask if it would be a conflict under the Ethics Act if a member of the family of a board member of the Tax Bureau were employed by the Tax Bureau. Secondly, you also request advise as to whether there would be a conflict if the board member were an elected municipal official from one of the member districts in the Tax Bureau. You conclude by stating that although you do not believe that this type of financial gain is contemplated in Section 3(a) of the Ethics Act, you nevertheless request an advisory opinion /advice. Discussion: As a board member for Tax Bureau, the individual is a public official /employee 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, the individual is subject to the provisions of the Ethics Act. Michael J. Macko, Equire Page 2 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. Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Since you have not stated the relationship between the board member and the member of his family, it can not be determined . whether that member is within the definition of "immediate family" as that term is defined under the Ethics Act. However, under Section 3(d) of the Act,the Ethics Commission is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. 403(d). Fritzinaer, 1� J. _c:.a� � Ma:.:c, ::,wire Page 3 Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by is 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'tay 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, supra. In relation to Section 3(d) of the Ethics Act, 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 public trust. See also Lewis, Advice 85 -558; Ceraso, Advice 85 -575. Therefore, under Section 3(a) or 3(d) of the Ethics Act, it is clear that the board member of the tax bureau could not use public office by either advancing employment of his family member, lobbying for that employment, or participating in any matter regarding the employment of the member of his family. Thus, although the Ethics Act would not per say prohibit the employment of the family member of the board member, the board member himself could not under Section 3(a) or 3(d) of the Ethics Act use his office to obtain the employment for his family %ich_ ie1 J. Mazko , J�v = Page 4 member. Further under Section 3(d) of the Ethics Act he would have to note his abstention of public record together with reason for his abstention. Lastly, Section 3(b) of the Ethics Act must be referenced in order to provide a complete response 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. Finally, 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 that they do not involve an interpretation of the Ethics Act. Conclusion: As a board member of a Tax Bureau, who may also be an elected municipal official, the individual is a public official /employee subject to the provisions the Ethics Act. Although the Ethics Act does not per say prohibit a family member of the board member from being employed by the Tax Bureau, under Section 3(a) and 3(d) of the Ethics Act the board member may not use his office in any manner to advance the employment of his family member and must abstain in all matters relating to that employment as well as noting his abstention of public record together with the reason for his abstention. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 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 Auxilde1 v. Jt.qu.L Lc Page 5 Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Aavica ru. ulic to 51 Pa. Code 2.12. JJC /nb Sincerly, Vincent r. Dopko General Counsel