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HomeMy WebLinkAbout90-508 GagliardiMr. Samuel Gagliardi 250 Prospect Street Baden, PA 15005 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE(717) 783-1610 ADVICE OF COUNSEL February 15, 1990 90 -508 Re: Conflict, Public Official, Immediate Family, Borough Council Member, Son, Public Safety Committee, Policeman. Dear Mr. Gagliardi: This responds to your letter of January 5, 1990, 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 a Borough Councilman being appointed to the public safety committee and voting when his son is a borough policeman. Facts: You have recently been elected as councilman to the Baden Borough Council and during the reorganizational meeting the president of council appointed you to the public safety committee, hereinafter committee. After noting that you contacted the Commission and were requested to submit an advisory request, you express concern because your son is a member of the Baden Police Department and hence would like advice as to whether you may serve on the committee. In addition, you inquire as to your voting rights regarding the police department and your son as a policeman. Finally, you inquire as to what concerns or considerations should be applicable to your voting as a member of council and on the committee. You suggest that this issue has been addressed on other occasions. Although you indicate the problem could be solved by declining membership on the committee, the matter has become a personal one to you in being able to apply personal judgments to problems of government. You believe that you and other officials should be able to apply principles of government and application of codes as council members even though you would have a son as a policeman in the borough. Discussion: As a Councilmember for Baden Borough, 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. Samuel Gagliardi 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. 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 Mr. Samuel Gagliardi Page 3 influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Initially, the Ethics Law would not prohibit you from serving on the committee simply because your son is a policeman in the borough. However, 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 otherwise prohibit you from advancing your individual interests, such as voting to appoint your son to a particular job, voting on his promotion, or taking action which is individual to your son that is separate and apart from the class or subclass of all policemen in the borough. However, a conflict would not exist if your son would be affected to the same degree as 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 of his immediate family or a business with which he or a member of his immediate family is associated. Therefore since your son would be policemen of Baden Borough who would be in a class /sub- class, Section 3(a) of the Ethics Law would not restrict such activity on your part provided your son is in a class /sub -class consisting of more than one person and provided your son is affected to the exact same degree as all other members (policemen) of the class /sub - class. Davis, Opinion 89 -012. 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. Specifically not addressed in this advice is the applicability of the Borough Code. Conclusion: As Councilmen of Baden Borough, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would otherwise prohibit you from voting or participating as to any action that would individually affect your son who is a member of your immediate family as that term is defined under the Ethics Law; however, you would not be precluded from voting or participating for your son provided he is -in a class /sub -class consisting of more than one person and provided he is affected to the exact same degree as all other members of the class /sub- class. The Ethics Law would not prohibit you from serving on the Public Safety Committee. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Mr. Samuel Gagliardi Page 4 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. S'ncerely, Vincent J.\.Dopko, Chief Counsel