HomeMy WebLinkAbout90-510 MeansDear Mr. Means:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
February 15, 1990
Mr. Charles M. Means 90 -510
Markel, Schafer & Means, P.C.
Attorneys at Law
1120 Grant Building
Pittsburgh, PA 15219
Re: Conflict, Public Official, Immediate Family, Supervisor,
Zoning Officer, Daughter -in -law.
This responds to your letter of January 8, 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 second class township
supervisor from voting for his daughter -in -law as zoning officer.
Facts: As solicitor for Harmar Township which is a second class
township with a five member board, you note that the board yearly
appoints at its reorganizational meeting a zoning officer, the
latter being a compensated position. Melody Domaratz who was
the zoning officer in 1989 has been nominated for the zoning
officer position at the current meeting. Because one of the
township supervisors, Fred Domaratz, is the father -in -law of the
nominee, he was advised to abstain from voting on her nomination
due to a possible conflict or the appearance thereof. However,
the remaining supervisors became deadlocked with two voting in
favor and two against the appointment so that no zoning officer
was appointed. On behalf of Supervisor Domaratz, you request
advice as to whether he would be permitted to vote on the
nomination of Melody Domaratz.
Discussion: As a supervisor for Harmar Township, Fred Domaratz
is a public official as that term is defined under the Ethics
Law, and hence he is subject to the provisions of that law. 65
P.S. 402; 51 Pa. Code $1.1.
Section 3(a) of the Ethics Law provides:
Mr. Charles M. Means
Page 2
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
influenced thereby. Reference is made to these provisions of the
law not to imply that there has or will be any transgression
Mr. Charles M. Means
Page 3
thereof but merely to provide a complete response to the question
presented.
Since the term "immediate family" is defined to include a
parent, spouse, child, brother or sister and since Melody
Domaratz is not in the familial relationship delineated above,
Section 3(a) of the Ethics Law would not prohibit Supervisor Fred
Domaratz from voting on the appointment of Melody Domaratz to the
position of zoning officer. See Baker, Opinion 89 -016, where the
Commission determined that a borough mayor was not restricted
from participating on a negotiating committee for a police
contract when his granddaughter was married to a policeman
because a granddaughter and grandson -in -law were not members of
the mayor's "immediate family."
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 Second
Class Township Code. In addition, it is beyond the scope of the
Ethics Commission to review, consider or pass upon the respective
job qualifications or performance of the nominee to a given
municipal position.
Conclusion: As supervisor of Harmar Township, Fred Domaratz is a
public official subject to the provisions of the Ethics Law.
Section 3(a) of the Ethics Law would not restrict Fred Domaratz
from voting to appoint his daughter -in -law as zoning officer who
is not 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
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
Mr. Charles M. Means
Page 4
and must be received at the Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code S2.12.
Sincerely,
Vincent . Dopko,
Chief Counsel