HomeMy WebLinkAbout82-541 SucklingMr. David C. Suckling
Suckling and Valasek
Attorneys -at -Law
Keystone Building
131 North McKean Street
P.O. Box 109
Kittanning, PA 16201
Dear Mr. Suckling:
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEtPayN i'17! w 610
ADVICE OF COUNSEL
82 - 541
RE: Section 3(c); Contract with Borough Council awarded to Council Member;
Open, public process
This responds to your letter of March 10, 1982 in which you, as Solicitor
for the Borough of Kittanning, requested advice from the State Ethics
Commission.
Issue: Pursuant to the Ethics Act, may a Borough Council hire one of its mem-
bers as a street employee, after public announcement of the position opening,
advertisement and publication in the local newspaper?
If the Council can and does hire one of its members to fill the position,
must the member resign from Council when hired?
Facts: You are Solicitor for the Borough of Kittanning. At its regular
monthly meeting on March 8, 1982, the Kittanning Borough Council publicly
announced that the Borough would accept applications for employment of a
street employee. The Council directed that notice be advertised in the local
newspaper. The notice was published and stated that applications would be
received until March 20, 1982 and that employment would commence on April 1,
1982.
One of the first applications received pursuant to the public notice at
the Council meeting was from one of the newly elected Council members. The
Council is concerned about the propriety of employing one of its members. The
Council also questions whether the applicant - Councilman would be required to
resign from Council should he be hired as a street employee.
Discussion: Members of Borough Council are public officials subject to the
Ethics Act, 65 P.S. §401 et seq. As public officials, they must comply with
the restrictions set forth in Section 3 of the Act & avoid even the appearance
of impropriety as required by Section 1 of the Ethics Act.
Stat? Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. David C. Suckling
May 10, 1982
Page 2
In this case, it appears that the Borough Council can award the contract
of the Council member, who in turn can accept it, because every effort has
been taken to avoid even the appearance that the Councilman was "favored" for
the position. The availaiblity of the position and the invitation for appli-
cations was publicly announced at he Council meeting. Thereafter, the
Council advertised same in a local newspaper. This fulfills the requirement
of Section 3 and Section 1 of the Act. Council would be advised to undertake
subsequent public disclosure of ail applications considered and the choice
made, but the Council member can accept the employment without violalating the
Ethics Act.
Of course, the Council member cannot use his position on Council, or any
confidential information received therein, to obtain employment as a street
worker. Likewise, he should abstain from participation in the deliberations,
discussions and votes leading to the employment of this worker, in general.
Furthermore, the Council member need not resign from Council if he is
hired by Council as a street employee. The Ethics Act does not proscribe
such concurrent service.
Conclusion? A Borough Council may hire one of its members to serve as e
street employee under the circumstances you present. The Councilman who
applied for and won the contract need not resign from Council in order to
accept the street employee contract. The Council member must abstain from
delbc;rations, discussions and votes leading up to the filling of this
position.
Pursuant to Section 7(9)(ii), tnis 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.
BF /rdp
Sincerely,
Sandra S. Chri ianson
General Couns