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HomeMy WebLinkAbout89-595 QuinnMr. John E. Quinn R.R. #1, Box 96 Fisher Lane Milford, PA 18337 Dear Mr. Quinn: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 20, 1989 89 - 595 Re: Conflict, Township Supervisor, Planning Commission, Employment of Supervisor's Daughter as Planning Commission Secretary and Office Clerk. This responds to your letter of November 9, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a second class township supervisor regarding the employment of his daughter as a planning commission secretary and office clerk. Facts: As the Board of Supervisors of Dingman Township, you jointly request an opinion regarding the hiring of one of your supervisor's daughter in the capacity of the secretary to the planning commission and office clerk. The position is part -time in nature consisting of a two day work week plus two evenings per month. Although you have advertised for the position, there have been no responses. Because the position is vital to the township, you wish to fill the vacancy as soon as possible but wish to act in an appropriate manner. You request advice as to the propriety of such employment. Discussion: As Supervisors for Dingman Township, you are "public officials" as that term is defined in the Ethics Law and hence are subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code S1.1. Section 3(a) of the Ethics Act provides: Section 3. Restrictgd Activities. Mr. John E. Quinn Page 2 (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that official /employee would be influenced thereby. Mr. John E. Quinn Page 3 In applying the provisions of Section 3(a) to the instant matter, it is noted that the individual who is considered for the position of planning commission secretary and office clerk is a daughter of one of the supervisors. Since a daughter is included within the statutory definition of immediate family, the supervisor who is the father of the candidate for the position of commission secretary and office clerk would have a conflict in participating or voting as to her employment. Accordingly, that supervisor could not vote or participate in the appointment of his daughter to the position of planning commission secretary and office clerk. Further, Section 3(j) of the Ethics Law would require him to publically announce and disclose the nature of his interest as a matter of public record in a written memorandum filed with the secretary recording the minutes of the meeting. Although the Ethics Law does not impose any prohibition upon the employment of one of the supervisor's daughter as the planning commission secretary or office clerk, that supervisor could not use the authority of office to obtain a private pecuniary benefit for himself or his daughter under Section 3(a) of the Ethics Law. For that reason, it is necessary for him to abstain and comply with the conflict disclosure requirements of Section 3(j) outlined above. Further, in the event that the supervisors daughter is hired, he could not vote or participate on matters involving his daughter such as the setting of her salary, the evaluation of her performance, or any personal or financial matters involving his daughter. In such circumstances, he would also have to observe the conflict disclosure requirements of Section 3(j) of the Ethics Law outlined above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: The Supervisors of Dingman Township are public officials subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not prohibit the daughter of a supervisor from being employed as planning commission secretary and office clerk, the supervisor who is the father could not use the authority of office to obtain a private pecuniary benefit for himself or his daughter and hence could not participate or vote as to her appointment nor could he vote or participate on any personal or financial matter concerning his daughter in the event that she is hired Mr. John E. Quinn Page 4 for that position. Section 3(j) of the Ethics Law would require that particular supervisor to publically announce his conflict and disclose his interest in a written a memorandum filed with the secretary recording the minutes. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, Vincent 7. Dopko, Chief Counsel