HomeMy WebLinkAbout82-594 MarsilioMr. Thomas M. Marsilio
c/o Louis G. Feldmann
Attorney At Law
Northeastern Building
Hazleton, PA
Mailing Address.
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
December 7, 1982
ADVICE OF COUNSEL
RE: Abstention; Building Inspector; Appointing Wife
Dear Mr. Marsilio:
82 -594
This responds to your letter of November 12, 1982, in which you as a
municipal solicitor requested an advice from the State Ethics Commission on
behalf of your client, a borough mayor.
Issue: You ask: a) whether a borough mayor may vote in the appointment of
his wife as borough building inspector and b) whether a borough mayor may vote
to authorize the project fees to his building inspector -wife for the sale of
building permits.
Facts: A borough mayor, hereinafter the Mayor, would like to vote on a) the
appointment of his wife as borough building inspector and b) the authorization
of payment of fees to his building inspector -wife for the sale of building
permits. The borough council consists of three majority members and three
minority members plus the Mayor. The Mayor may have to cast a tie - breaking
vote in either case.
Discussion: The Ethics Act, at 65 P.S. 401 et seq., regulates the conduct of
public officials, such as the Mayor to assure the public of the independence
and impartiality of its servants. Section 3(a) of the Act prohibits a public
official from using his public office to obtain financial gain other than
compensation provided by law for himself or a member of his immediate family.
The primary purpose of the Act is to strengthen public confidence in
government by avoiding even the appearance of a conflict of interest. Thus,
because Section 2 of the Act defines "immediate family" as including a spouse
residing in the person's household as well as minor dependent children,
Section 1 and 3(a) necessarily preclude the Mayor, from voting on whether or
not his wife will be appointed as the borough building inspector. Whether his
vote would break a tie or not, it is necessry for him to abstain from voting
in order to comply with the Ethics Act.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Thomas M. Marsilio
December 7, 1982
Page 2
With regard to your question as to whether your client may cast the
tie - breaking vote to authorize the payment of fees to his building
inspector -wife for the sale of building permits, it must first be determined
whether you client may vote at all. If set fees already exist for the sale of
building permits, and the vote to pay the building inspector is merely
ministerial in nature, ie., the fees are ordinarily uncontested routine and
pre -set payments for services rendered, then your client may vote on them and
may, as necessary, cast the tie - breaking vote. Where the vote is to establish
the routine or schedule for payment of fees to adjust the fees to be paid or
to rule upon a disputed fee payment, ie., is of a discretionary nature, then
your client, in order to avoid the appearance of a conflict of interest, may
not vote.
Conclusion: The Mayor, in order to avoid even the appearance of a conflict of
interest, may not vote on whether or not to appoint his wife as borough
building inspector. Where the authorization of the payment of fees to the
building inspector -wife for the sale of building permits might arise, your
client may vote if such vote is merely of a ministerial nature is undisputed
and not subject to discretion but may not vote if such vote is of a
discretionary nature, because under the Ethics Act, he must avoid even the
appearance of a conflict with the public interest.
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.
CW /rdp
Sandra S. Christianson
General Counsel