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HomeMy WebLinkAbout85-608 KuzmiakMr. John J. Kuzmiak Alma -Hall - 422 Main Street Johnstown, Pennsylvania 15901 Dear Mr. Kuzmiak: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 December 19, 1985 ADVICE OF COIINSEL Re: School Director, Spouse, Employee of School District 85 -608 This responds to your letter of December 3, 1985, wherein you requested the advice of the State Ethics Commission. Issue: Whether a member of a hoard of directors for a school district may participate in the employment of that director's spouse by the school board. Facts: As solicitor for a school district in the Johnstown, Pennsylvania, area you have requested the advice of the State Ethics Commission. You indicated that at a regularly scheduled school hoard meeting held on December 2, 1985, the school hoard members voted to hire David Miller in a non- professional capacity in the school district. You further advised that Mr. Miller's wife is a memher of the school board and participated in the appointment of Mr. Miller. Mr. Miller has not assumed his duties pursuant to this employment and Mrs. Miller along with the other members of the school hoard are requesting an opinion from the State Ethics Commission as to whether or not Mrs. Miller can participate in the hiring of her husband. Discussion: As elected officials, the members of school hoards are generally considered to he puhlic officials as that term is defined in the State Ethics Act. 65 P.S. &402. As such, school directors must conform their conduct to the requirements of the State Ethics Act. See Krier, 84 -002. Generally, the State Ethics Act provides that: Section 3. Restricted activities. (a) No public official or public employee shall use his puhlic office or any confidential information received through his holding public office to obtain financial gain Mr. John J. Kuzmiak December 19, 1985 Page 2 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). The foregoing provision of law clearly indicates that a public official may not use his or her public position in order to obtain any financial gain, other than the compensation provided for by law, for themselves or a member of their immediate family. A member of one's immediate family is also defined in the State Ethics Act as: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. This Commission has, on a number of occasions in the past, determined that, within the above provision of law, a public official may not vote or participate in matters directly relating to that official's spouse such as their appointment or salary determination. Rockovich, No. 356 -R; Krier, 84 -002; Bruce, No. 247; McCaigue, No. 392. In relation to the specific question that you have asked, the Commission has previously ruled that a member of a board of school directors may not participate in the appointment of that official's spouse to a position of employment within the school district. Beck, 79 -018; Ferrari, 79 -019. The above result is clearly in keeping with the intent and purpose of the State Ethics Act as outlined in Section 1 of the Act. A review of that provision of law indicates that it was the legislative intent that the public be assured that the financial interests of their public official's do not conflict with the public trust. As such, this Commission has previously ruled that even if the vote of the public official in appointing his or her spouse to a position of employment would not he the deciding vote, abstention would still be required. See McCaigue, No. 392. The financial interest of the public official, in such a matter, creates a disqualification. Genkinger v. City of Newcastle, 308 Pa. 547, 84 A.2d 303, (1951). As a result, in any situation where a public official or a member of his immediate family or a business with which the official is associated will directly benefit from a decision by that public official, the public official must abstain from participating in said matter. It is further noted that the employment of a public official's spouse should be conducted in an open and public manner and the abstention and the reasons for said abstention by the public official should be publicly noted and recorded. Mr. John J. Kuzmiak December 19, 1985 Page 3 Finally, the school director should not participate in any matter that would financially benefit her spouse. Similarly, the school director should not be responsible for reviewing or evaluating the performance of her spouse in his position of employment with the school district. It is noted that the school director may participate in the final vote on the adoption or ratification of a collective bargaining agreement that includes her spouse, so long as she was not involved in the meetings, negotiations and discussions leading to the final agreement that will be adopted, and so long as the final agreement to be adopted affects her spouse no more than any other member of the bargaining unit. See Blaney, 84 -003; Montgomery, 84 -004. Conclusion: As a public official, a member of the school board may not participate in any matter regarding the appointment of her spouse to a position of employment within the school district. A school director should also abstain from participation in any matter that would directly benefit her spouse financially. Said abstention should be publicly disclosed as well as recorded in the appropriate records of the school board. 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 made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJC /sfb Sincerely, �fv�2 ohn J. Co no General unsel