HomeMy WebLinkAbout83-517 LeymarieRE: Borough Manager; Relatives Voting
Dear Mr. Leymarie:
Mailing Address
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
March 1, 1983
ADVICE OF COUNSEL
Mr. Edward Leymarie, Jr.
Keller, Pomerico, Leymarie & Clark, P.C.
120 Fourth Street
Ellwood City, Pennsylvania 16117
83 -517
This responds to your letter of January 18, 1983, in which you, as
Solicitor for the Borough of Ellwood City, requested advice for the State
Ethics Commission.
Issue: You ask whether a councilman related through marriage to a councilman
who is a candidate for the appointment of Borough Manager may vote on the
appointment.
Facts: The Ellwood City Borough Council is in the process of selecting a new
Borough manager. The position has been advertised in various professional
journals and newspapers, and eighty -nine (89) applications have been
submitted. The job has been advertised as having an annual salary of between
$20,000 and $30,000 plus benefits.
One of the members of the Borough Council is a candidate for the
position. Another member of the Council is an uncle through marriage of the
applicant. You would like to know whether his relationship to the candidate
poses any restrictions on his voting in the matter.
Discussion: The Ethics Act, 65 P.S. §401 et seq. recognizes that public
office .is a public trust and that the financial interests of public officials
should present neither a conflict nor the appearance of a conflict with the
trust. A Borough Council member is a "public official" subject to the
provisions of the Ethics Act. See definitions, 65 P.S. §402.
Section 3(a) of the Act also states that no public official shall use his
public office to obtain financial gain for a member of his immediate family
other than that provided by law. The Ethics Act defines "immediate family"
as "a spouse residing in the person's household and minor dependent children."
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Edward Leymarie, Jr.
March 1, 1983
Page 2
While the Commission has extended restrictions to other close family members,
such as non -minor children, siblings, brothers, and in -laws as to matters
before the municipality relating to same, the Commission does not have any
precedent which would restrict the actions of one who is an uncle by virtue of
marriage. Thus, your client may, consistently with Section 1 of the Ethics
Act and current Commission precedent, participate in the selection of the
candidate for the Borough manager's position as described above.
Conclusion: While it is necessary for one who is a public official subject to
the Ethics Act to avoid both a conflict and an appearance of a conflict of
interest when faced with votes concerning a member of his immediate family,
there is no Commission precedent to prohibit from one who is an uncle by
virtue of marriage, voting on an issue when it has been openly and
advertised which might benefit his nephew.
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
Sincerely,
/Sandra S. C tianson
General Couns