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HomeMy WebLinkAbout90-524 UstynoskiSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 Mr. Joseph Ustynoski Ustynoski, Sharkey and Marusak Law Offices Suite 205 Hazleton, PA 18201 ADVICE OF COUNSEL March 20, 1990 Section 3(a) of the Ethics Law provides: 90 -524 Re: Conflict, Public Official, Immediate Family, Municipal Authority Member, Son. Dear Mr. Ustynoski: This responds to your letter of February 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 municipal authority member from voting or participating for a position of employment with the authority by his son. Facts: Neil Craig is currently a member of the Board of Directors of the Greater Hazleton Joint Sewer Municipal Authority, hereinafter Authority. Mr. Craig's son Neil Craig, Jr. is an applicant for a position to become an employee of the authority work force which operates the sewage disposal plant. He would be applying for a position as an operator's assistant or in some similar capacity. Mr. Craig inquires as to whether his son could be hired if he abstains from voting. Alternatively, Mr. Craig inquires as to whether he could resign prior to his son's possible selection and, if so, would there be any restriction as to the City of Hazleton subsequently reappointing Mr. Craig to membership on the Authority in the future. Discussion: As a member for Great Hazleton Sewer Municipal Authority, Mr. Craig is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Mr. Joseph Ustynoski 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. Joseph Ustynoski 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 Mr. Craig's son is in the familial relationship delineated above, Section 3(a) of the Ethics Law would prohibit Mr. Craig from voting or participating on the appointment of his son to a position of employment with the authority. Davis, Opinion 89 -012. Thus, if Mr. Craig were to vote or participate, such action would be a use of the authority of office to obtain a private pecuniary benefit to his son in contravention of the Ethics Law. Section 3(j) of the Ethics Law requires public disclosure prior to voting on the matter as well as disclosing same in a written memorandum filed with the person responsible for recording the minutes. The Ethics Law does not prohibit Mr. Craig's son from applying for position of employment with the Authority nor does the Ethics Law require that Mr. Craig resign from the Authority as a condition for his son's possible employment. However, the Ethics Law as noted above, would prohibit Mr. Craig from using the authority of office by participating or voting as to his son's employment. 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 member of Greater Hazleton Sewer Municipal Authority, Mr. Craig is a public official subject to the provisions of the Ethics Law. The Ethics Law does not require Mr. Craig to resign from the Authority if his son applies for a position of employment. Section 3(a) of the Ethics Law would prohibit Mr. Craig from voting or participating for the employment of his son who is a member of his immediate family as that term is defined under the Ethics Law. The requirements of Section 3(j) of the Ethics Law outlined above must be observed. 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. Mr. Joseph Ustynoski Page 4 such. This letter is a public record and will be made availgble 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 S2.12. Vincent . Dop o, Chief Counsel