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HomeMy WebLinkAbout83-586 SiegelAuthor B. Siegel 401 Broad Street Milford, PA 18337 Marling Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 August 17, 1983 ADVICE OE COUNSEL State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 83 -586 RE: Municipal Authority Member, Appointment of Spouse, Employment Contract Dear Mr. Siegel: This responds to your letter of July 19, 1983, in which you, as Solicitor of the Municipal Authority of the Borough of Milford, requested advice from the State Ethics Commission. Issue: You ask whether the spouse of the Chairman of the Municipal Authority of the Borough of Milford may serve as the appointed Secretary /Collector of the Authority under the Ethics Act. Facts: You serve as Solicitor of the Municipal Authority of the Borough of Milford. You inform us that the Secretary /Collector of the Authority recently resigned, and the Authority members appointed a Mrs. Geiger to fill that position. Her husband, Mr. Geiger, serves as Chairman of the Municipal Authority and is paid for attending monthly meetings. You add that Mrs. Geiger served as Secretary /Collector several years ago, before Mr. Geiger obtained his current position, and the Authority members considered her highly qualified to hold this part -time position. You are, however, concerned with the legality of the situation, and you have, therefore, requested advice from the State Ethics Commission. Discussion: In light of the fact that Mr. Geiger is paid for attending monthly meetings, he is a "public official" subject to the Ethics Act. In this light, his conduct, especially with regard to the appointment of his wife as Secretary /Collector of the Authority, must conform to the guidelines of the Ethics Act. Author B. Siegel August 17, 1983 Page 2 The Ethics Act requires that any public official or member of the public official's immediate family who contracts with the governmental body with which the official is associated, may do so only after engaging in an open and public process as required by Section 3(c) of the Ethics Act, 65 P.S. 403(c). Section 3(c) has been interpreted to mean that even in a contract of employment situation, as outlined above, the governing body should insure that reasonable and prudent competitors or other applicants for the position in question should be given notice and an opportunity to compete for or apply for the position in question. See Howard, 79 -004; Cantor, 82 -004; and Fields, 82 -006. Thus, where the spouse of an Authority member sought employment with the Authority, there should have been: 1. prior public notice of the employment possibility and opening; 2. sufficient time for a reasonable and prudent competitor- applicant to be able to prepare and present an application; 3. public disclosure of all applications considered; and 4. public disclosure of the employment and contract awarded or offered and accepted. The Act also states that no public official may use his public office or any confidential information received through the holding of public office to obtain financial gain for himself, or a member of his family other than compensation provided by law. 65 P.S. 403(a). Section 3(b) of the Act prohibits a public official or member of his immediate family from accepting any thing of value, including the promise of future employment for himself or a member of his family based on the understanding that the official's conduct would be influenced thereby,, See 65 P.S. 403(b). Thus, in order to comply with Section 3(a) and Section 3(b) of the Ethics Act and to avoid any appearance of a conflict of interest or impropriety as required by Section 1 of the Ethics Act the Authority member (Mr. Geiger) should have abstained from voting on the Authority's decision relating to the selection of his wife as Secretary /Collector. The reasons for this abstention should have been placed on the public record, and the Authority member should not have participated in any manner in discussions or decisions to reject or accept his wife any other applicants for this position. Conclusion: While there is no per se prohibition against the spouse of the Municipal Authority member serving as Secretary /Collector for the Municipal Authority, the guidelines as set forth above should be, or should have been, adhered to in order to meet the requirements of Section 3(c) of the Ethics Act and to avoid even the appearance of a conflict of interest with the public trust. Author B. Siegel August 17, 1983 Page 3 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. ristianson General Counsel