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HomeMy WebLinkAbout81-542 CableDear Mr. Cable: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 April 10, 1981 ADVICE OF COUNSEL Robert L. Cable 81 -542 Legislative Reference Bureau P.O. Box 1127 Harrrisburg, PA 17120 RE: Employment Contracts, Conflict of Interest, Immediate Family This responds to your letter of January 29, 1981, in which you, the Director of the Legislative Reference Bureau, requested an opinion from the Ethics Commission. Issue: You requested advice as to whether the spouse of a public employee may contract with the public employer. You also request advice as to whether the compensation paid the spouse of a public employee may be increased by the spouse to match the compensation of other employees. Facts: You informed us that you are the Director of the Legis- lative Reference Bureau. A previous Director, Ted Doyle, hired Caryl Cable to update computer data on statutes. Caryl Cable is your wife. The contract between Caryl Cable and the Bureau was continued by directors after Doyle and the rate of pay increased to $5 per hour. The rate of pay for other Bureau employees is now $6 per hour. Discussion: As a public employee, the Director of the Legisla- tive Reference Bureau is subject to the provisions of the Ethics Act. The statute provides that: " . no public employee or a member of his immediate family... 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...." 65 P.S. §403(c). Accordingly, any contract between your spouse and the Legislative Reference Bureau valued at more than $500 must be awarded through an open and public process. A prior decision of the Commission has defined "open and public process" as: Robert L. Cable April 10, 1981 Page 2 (1) Prior public notice; and (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract, Howard, 79 -044. The process is open and public if a competitor of the spouse of the public employee could receive notice of the employment opportunity to make timely application for the position. The employment contract between the Bureau and Caryl J. Cable was begun before the effective date of the Ethics Act, and this discussion does not address the validity of that contract. See Greenblatt, 79 -009. Contracts entered into after the effective date of the Act and your appointment as Director of the Bureau, however, must comply with standards of an open and public process mandated by the Act and the decisions of the Commission. Approval of Caryl Cable's employment contract appears to rest with the Director of the Bureau. To avoid the appearance of a conflict of interest prohibited by 65 P.S. §401, Section 1 of the Ethics Act, you must not directly or indirectly approve your wife's contract or amendments thereto and insure that the contract was let in an open and public process as discussed above. Such hiring or change in your wife's contract would have to be approved by your superiors. Again assuming that your wife is employed through an open and public process, your approving a raise for her also presents the appearance of a conflict of interest. Any change in her rate of pay must be separately reviewed and approved. Conclusion: As a public employee, the Director of the Legisla- tive Reference Bureau must comply with the Ethics Act. Any contract between the spouse of a public employee and the Bureau must be awarded through an open and public process if the contract is valued at $500 dollars or greater. An open and public process gives: (1) Prior public notice; and (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract. A competitor of the spouse of the public employee should have an opportunity to compete for the position. The public employee should not participate directly or indirectly in the decision and /or approve, review, or renew the contract or amendments thereto of your spouse. If you wife is to be retained or paid more, your superiors would have to approve same. Robert L. Cable April 10, 1981 Page 3 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SW /rdp Sincerely, andra S. Christianson General Counsel