HomeMy WebLinkAbout90-503 LevengoodSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
January 16, 1990
90 -503
Mr. Daniel S. Levengood
R.D. #1, Box 427
Oley, PA 19547
Re: Conflict, Public Official, Immediate Family, Son, Sewage
Enforcement Office, Township Engineer, Business with Which
He is Associated.
Dear Mr. Levengood:
This responds to your letter of December 20, 1989, in which
you requested advice from the State Ethics Commission.
Issue: You ask whether the Public Official and Employee Ethics
Law presents any restrictions upon Township Supervisor from
voting to hire his son for township sewage enforcement officer
and secondly whether the Ethics Law prohibits a supervisor from
voting for an engineering firm for township engineer when his son
is employed in that firm.
Facts: You are the township supervisor in Oley Township, Berks
County, wherein your son took a position with the engineering
firm that is the township engineer. The firm has been the
township engineer for about four years prior to your son joining
the firm. In addition your son is a certified sewage enforcement
officer (SEO) and during the last year was appointed as one of
the several SEO's in the township. You abstained from the vote
to appoint your son as SEO. You seek an opinion from the
Commission as to whether it would be improper for you to vote to
reappoint the firm as township engineer when your son works for
the firm. Secondly, you inquire as to whether it would be
improper to vote to reappoint the firm as township engineer if
your son would decline appointment of SEO. Lastly, you inquire
as to whether it would be improper for your son to be appointed
SRO in the township even though you did not vote for him.
Discussion: As a supervisor for Oley township, you are a public
official as that term is defined under the Ethics Law, and hence
you are subject to the provisions of that law.
Mr. Daniel S. Levengood
Page 2
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined in the Ethics Law as
follows:
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.
"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 has a
financial interest.
Mr. Daniel S. Levengood
Page 3
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 the vote, official
action, or judgement of the public official /employee would be
influenced thereby.
Since the term "immediate family" is defined to include a
parent, spouse, child, brother or sister and since your son is in
the familial relationship delineated above, Section 3(a) of the
Ethics Law would prohibit you from voting to appoint your son as
SEO. Davis, Opinion 89 -012. Thus, if you were to vote to
appoint your son as SEO, such action would be a use of the
authority of office to obtain a private pecuniary benefit to you
and a member of your immediate family in contravention of the
Ethics Law. In addition, since your son is employed by the firm
which is township engineer, that firm is a business with which
your son is associated as that term is defined under the Ethics
Law. Accordingly, Section 3(a) of the Ethics Law would also
prohibit you from voting to reappoint that firm as township
engineer. Thus, although your son could be employed by the
engineering firm and your son could serve as township SEO, you
could not use the authority of office to vote for either of those
appointments. Further, if the appointment of the engineering
firm as township engineer or the appointment of your son as SEO
comes before the township board, you must publicly disclose your
abstention as well as note same in a written memorandum filed
with the secretary recording the minutes as required by Section
3(j) of the Ethics Law.
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: As supervisor of Oley township, you are a public
official subject to the provisions of the Ethics Law. Section
3(a) of the Ethics Law would prohibit a second class township
supervisor from voting to appoint his son as township SEO or
voting to appoint an engineering firm as township engineer when
his son is employed therein since his son is a member of his
immediate family as that term is defined under the Ethics Law.
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
Mr. Daniel S. Levengood
Page 4
such.
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
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.
ncerely,
V C
Vincent J. Dopko,
Chief Counsel