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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