Loading...
HomeMy WebLinkAbout84-505 StreetSenator T. Milton Street Senate of Pennsylvania Commonwealth of Pennsylvania Room 186 Main Capitol Building Harrisburg, Pennsylvania 17120 Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 January 11, 1984 ADVICE OF COUNSEL RE: Legislative Assistant, Selection Process Dear Senator Street: 84 -505 This responds to your letter of January 6, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask what process should be followed to insure there is no violation of the Ethics Act in the filling of a staff position within your office. Facts: You currently serve as a member of the Senate of the Commonwealth of Pennsylvania. In the near future you plan to fill the legislative assistant position on your staff. One of the candidates to be considered may be your step- daughter, Simone Christine Hipp, hereinafter Simone. Simone is 19 years of age and does not live with you at your home and is not dependent upon you as that term is generally understood. You intend to implement a selection process for the filling of this position which will evaluate each of the candidates who seek this position on the basis of skills and previous experience consistent with the requirements of the position. Simone will be considered, among other candidates, using this selection process and criteria. Discussion: As an elected official of the Commonwealth of Pennsylvania you are a "public official" as that term is defined in the State Ethics Act. See Section 2 of the Ethics Act, 65 P.S. 402. As such, your conduct must conform to the requirements of the State Ethics Act. The provisions of the State Ethics Act most applicable to our review of your question are Section 3(a) and Section 3(c) of the Ethics Act reprinted below for easy reference: (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family or a business with which he is associated. 65 P.S. 403(a). State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Senator T. Milton Street January 11, 1984 Page 2 (c) No public official or public Employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. 403(c). As set forth above, these provisions are applicable to you as a "public official" and a member of your "immediate family" and would impose certain restrictions upon your conduct and your ability and that of members of your "immediate family" to contract with the governmental body with which you are associated -- your office in this case. However, before proceeding to further analyze these provisions, we must review the term and the .cope of the definition of "immediate family" contained in the Ethics Act as follows: "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. We must also review the definition of the term "minor dependent child" as set forth in the regulations of the State Ethics Commission as follows: Minor dependent child -- person under 18 years of age who lived in the household of the person - filer - required to file a financial interest statement during the reporting period whom the filer claimed as a dependent on the filer's federal income tax return for the equivalent reporting period. 51 Pa. Code 1.1. While it is clear that the provisions of Section 3(a) and (c) regarding use of your public office and contracting respectively would be applicable to you, they are applicable only to a member of your "immediate family" as that term is defined in the Act and the regulations cited above. From these facts and these definitions, it is clear that Simone is not a member of your "immediate family" as set forth in the Act, nor is she a "minor dependent child" as contained in the regulations of the Commission because she is not under 1R years of age, does not live in your household, and is not dependent upon you. Thus, the provisions of Section 3(a) and (c) of the Ethics Act which might impose restrictions upon your conduct or a member of your "4mmediate family" would be inapplicable under these specific circumstances. Senator T. Milton Street January 11, 1984 Page 3 However, even if the restrictions of Section 3(c) regarding contracting were applicable, the Commission has simply required that an "open and public process" be undertaken before a member of a person's "immediate family" would contract with the governmental body (your office) with which you are associated. Thus, even if Section 3(c) were applicable, in order to comply with the requirements of the Ethics Act, there need be only a reasonable opportunity for applicants other than Simone to submit applications and to be considered for appointment to this staff position. See Howard, 79 -044. Assuming, as you indicate above, that you intend to implement a process which will alert and consider candidates other than Simone and that a process of evaluation based upon skills and previous experience will be undertaken, there is no reason why Simone should not be considered for employment by your , office. There would be no violation of Section 3(a) or Section 3(c) of the Ethics Act nor any other provision were you to consider Simone for or to employ Simone in the position which you now have vacant. Conclusion: The Ethics Act, under the circumstances outlined above, is not violated were you to undertake the above - referenced process of consideration and employment of Simone Christine Hipp. The process you outlined for selection and consideration will comply with the Ethics Act. 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. 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 made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /rdp This letter is a public record and will be made available as such. Si gcerely, Sandra S. C istianson General Counsel