HomeMy WebLinkAbout82-584 MillerDennis Miller, Director
Community Relations &
Information Services
Mansfield State College
Mansfield, PA 16933
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
November 8, 1982
ADVICE OF COUNSEL
RE: Wife, Graduate Assistant, Section 3(c)
Dear Mr. Miller:
82 -584
This responds to your letter of October 18, 1982, in which you requested
advice from the State Ethics Commission.
Issue: You inquire as to the propriety under the State Ethics Act of hiring
your wife as a graduate assistant in your office.
Facts: You serve as the Director of Community Relations and Information
Services for Mansfield State College. It has been your practice during each
academic year to rely upon a graduate assistant to do much of the news and
publications writing in the Community Relations and Information Services
Office. During the summer of 1981 the graduate assistant hired for such a
purpose worked on departmental recruiting publications. During the summer of
1982 you recommended that the graduate assistant be retained to work on four
issues of the publication called "Views ", an admissions recruiting publication
which is sent to prospective college students.
Typically, the graduate assistant who is hired for this work is retained
for a few weeks during the summer to perform these special projects or to do
routine work that frees your time for more substantial projects. During the
summer of 1982 you recommended that your wife, Linda Miller, be hired to per-
form this function. Your wife is a graduate assistant and had developed
contacts on campus during the year which would be beneficial to the perfor-
mance on this job. In addition, your wife has the required qualifications to
perform the work in question.
Your wife was retained on a service purchase contract which amounts to or
encumbers the sum of $200 for the performance of this task. In the process of
preparation and approved of this contract you signed this contract as the
approving authority in the initial approval process.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Dennis Miller, Director
November 8, 1982
Page 2
Discussion: For purposes of this response, we will assume that you are a
"public employee" as set forth in the State Ethics Act. As such, your conduct
must conform to the requirements of the Ethics Act. The requirements of the
Ethics Act that most specifically apply to your question are found in Section
3(c) of the Ethics Act which provides as follows:
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 can be seen from this provision of the Ethics Act any contract in
excess of $500 between the members of a public employee's immediate family and
the governmental body with which the public employee is associated would have
to be awarded only after an open and public process had been followed. In
this case, since the amount of the contract in question is $200, the specific
provisions of Section 3(c) and the requirements of an open and public process
would not apply.
The only other provision of the Ethics Act which might be impacted by the
actions undertaken here would be Section 3(a) of the Act which states that:
(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).
In relation to Section 3(a) the Commission has indicated that no public
official should participate in or vote on the appointment of a member of his
immediate family or to participate in the establishment of that person's
salary. This is particularly true where the recommendation or vote would be
cast to the particular, if not the sole, benefit of the member of the
immediate family. Leete, 82 -005. In addition, the public employee should not
participate directly or indirectly in the decision or recommendation to
Dennis Miller, Director
November 8, 1982
Page 3
approve, review, renew, the contract or the hiring of his or her spouse.
Cable, 81 -542. It would be advisable, in order to avoid even the appearance
of impropriety, for you to have refrained from any recommendation or approvals
to the employment of your spouse. However, given the short duration of the
contract in question and the amount of the contract in question we do not
believe that your actions per se, constitute a violation of the Ethics Act.
Should the same situation arise in the future, however, you must remove
yourself from any decision, recommendation or approval process by which your
spouse would be employed by your governmental body and in particular, by the
Office of Community Relations and Information Services where you serve.
Conclusion: Section 3(c) of the Ethics Act is inapplicable because the amount
of the contract in question here did not exceed $500. Therefore, no open and
public process was required before this contract could be awarded. However,
you should have refrained and should for the future refrain from participating
in any manner in the decision making process, approval of, or recommendation
or selection process of hiring your spouse as set forth above.
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.
SSC /rdp
S'ncerely,
andra s C r'stianson
General Counsel