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HomeMy WebLinkAbout90-533 AlbrightSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 29, 1990 Ms. Lynda G. Albright 90 - 533 Borough of Hamburg 61 North 3rd Street Hamburg, PA 19536 Res Conflict, Public Official, Immediate Family, Borough Councilmember, Son Dear Ms. Albright: This responds to your letter of February 13, 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 from participating or voting for the employment of his son to the street crew. Facts: As Borough Secretary and with the authorization of the Borough Councilman whose conduct is in question, you inquire as to whether Hamburg Borough may hire an employee for the street crew when his father is an elected official of the Borough Council. After advising that you have been unable to discern whether such would be a conflict, you request advice of this Commission on the matter. Discussion: As a Councilmember for Hamburg, the individual is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. 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. Ms. Lynda G. Albright Page 2 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 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 the borough 4 i 1 1 1 i Ms. Lynda G. Albright Page 3 councilmember is in the familial relationship delineated above, Section 3(a) of the Ethics Law would prohibit a borough councilmember from participating or voting as to the employment of his son. Davis Opinion 89 -012. Thus, if the individual were to vote or participate in the hiring of his son, such action would be a use of the authority of office to obtain a private pecuniary benefit to himself in contravention of the Ethics Law. Section 3(j) of the Ethics Law requires public disclosure 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 the employment of the Councilmember's son to the street crew; Section 3(a) does restrict the councilmember from voting or participating as to the hiring of his son to that position. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other 1 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 Borough Councilmember of Hamburg, the individual is a public official subject to the provisions of the Ethics Law. The son of a borough councilmember is not precluded from employment on the street crew of the Borough. However, Section 3(a) of the Ethics Law would prohibit a Borough Councilmember from voting or participating to hire 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. 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. such. 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 1 14A. Lynda G. Albright Page 4 and must be date of this received at the Commission within 15 days of the Advice pursuant to 51 Pa. Code S2.12. cerely, o4 1 Vincent Dopko, Chief Counsel