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HomeMy WebLinkAbout83-569 JohnstonGlenn Johnston c/o Timothy P. O'Rielly, Solicitor 322 Boulevard of the Allies Pittsburgh, Pennsylvania 15222 Dear Mr. Johnston: Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 June 29, 1983 ADVICE OF COUNSEL RE: Township Employment, Commissioner's Son 83 -569 This responds to the communication of Daniel M. Kelly, Secretary of Elizabeth Township, in which he, with your concurrence, as communicated through your solicitor's letter of June 24, 1983, has presented certain facts and requested advice of the State Ethics Commission. Issue: The question is whether you, as a Township Commissioner, can participate in selection of your son as a Road Department employee of the Township. Facts: You currently serve as a Commissioner in Elizabeth Township, hereinafter, the Township. The Township is in the process of selecting an employee for its Road Department. It is proposed that the Township will make its final selection at the meeting on July 5, 1983. The selection of the Township has been narrowed downed to two men: Glenn Johnston, Jr., and Robert Greenawalt. Each man received four votes from the eight Commissioners present. It should be noted that Glenn Johnston, Jr. is your son and you seconded the motion for hiring Glenn Johnston, Jr. When questions were raised as to whether or not this action was proper under the Ethics Act, no further action was taken, and it was suggested that the Solicitor should be prepared to offer an opinion or solicit same from the Ethics Commission for the next meeting to be held at which the final decision would be made on this appointment. Glenn Johnston, Jr. is not a dependent child of Commissioner Glenn Johnston. Glenn Johnston, Jr. is 29 yers old, married, and has three children and resides in a home other than that of Commissioner Glenn Johnston. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Glenn Johnston June 29, 1983 Page 2 Discussion: As an elected Commissioner, you are to be considered a "public official" as that term is defined in the Ethics Act. Consequently, your conduct must conform to the requirements of the Ethics Act. Specifically, the Ethics Act requires that your conduct must present neither a conflict nor the appearance of a conflict with the public trust. In interpreting the provisions of the Ethics Act, in light of the questions presented, we must first look at Section 3(a) of that Act as follows: (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 accordance with this provision, no public official may use his public office or his vote as a public official to the - benefit of a member of his "immediate family." The term "immediate family" is defined in the Ethics Act as a spouse residing in the official's household, or a minor dependent child. Obviously, Glenn Johnston, Jr. is not a member of your "immediate family" as that term is defined in the Ethics Act, because he is neither a minor, nor dependent, nor residing in your household. Thus, the strict provisions of Section 3(a) of the Ethics Act would be inapplicable to further review of this question. However, the Commission has also concluded, in certain circumstances, that the provisions of Section 1 of the Ethics Act require a broader interpretation and application than to be strictly limited to the regulation of a public official vis -a -vis his "immediate family." Specifically, in Leete, 82 -005, the Commission concluded that a County Commissioner could not sit on a Salary Board and vote for the salary of her brother as Director of the County Planning Agency, without engaging in conduct which would appear to conflict with the public trust. The Commission concluded that as a Salary Board member, the County Commissioner should not vote to set the salary of her brother in order to avoid the appearance of a conflict of interest. Similarly, in this situation, even though it would not strictly pose any problems under Section 3(a) of the Ethics Act as narrowly construed, the application of the concepts contained in Section 1 of the Ethics Act would, under this Commission precedent, require you, as Commissioner, to abstain from participating in any manner in the selection process of this road worker where your son is subject to review and appointment. - Glenn Johnston June 29, 1983 Page 3 Thus, in response to your specific question, under the Commission precedent set forth above, you, as Commissioner, may not nominate your son for the position, may not second the nomination to this position if another Commissioner nominates Glenn Johnston, Jr. for this post, and as you may not vote for the appointment of your son to this position. Likewise, since the choices already been narrowed down to two individuals -- either your son or another individual -- either your son or another individual -- you should likewise abstain on the decision to appoint or not appoint the other individual. This conclusion stems from the fact that if you as Commissioner were permitted to vote against the other individual, you would in essence be in a position to, by defeating the other individual's chances for employment, insure that the position would be available for your son. This Commission has concluded that the ability to effectively deny all other applications where a limited source of funds are available so that an official may effectively insure the availability of funds for his corporation's project or application is intradicted under the Ethics Act. See Coploff, 83 -005. Similarly, your ability as Commissioner, in this instance, to deny employment to the other applicant could be viewed as an attempt to insure the availability of that position for your son. Conclusion: In order to comply with the provisions of Section 1 of the Ethics Act and to avoid any appearance of a conflict of interest with the public trust as required by that Section, as a Commissioner, you should abstain from participation in any manner in the selection process including but not limited to discussions, making motions, voting, etc., under the circumstances outlined 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 Sincerely, Sandra S. hristianson General Counsel