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HomeMy WebLinkAbout83-592 CrevelingMr. Harry P. Creveling, Esquire 523 Linden Street Allentown, Pennsylvania 18101 Mailing Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 September 16, 1983 ADVICE OF COUNSEL RE: Sewer Authority, Voting Restriction 83 -592 Dear Mr. Creveling: This responds to your letter of July 12, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask whether under certain circumstances a member of a municipal authority may vote or must abstain on the appointment of his son as an employee of the authority. Facts: You, as Solicitor, of the Coplay- Whitehall Sewer Authority, hereinafter the Authority, request advice on behalf of one of the members of that Authority. Specifically, the Authority's composed presently of seven members and it was founded by the Township of Whitehall and the Borough of Coplay, serving both areas. Four of its members are appointed by the Commissioners of Whitehall Township and three by the Borough Council of Coplay Borough. Further, you indicate that members of the Authority are paid and reimbursed other than for actual expenses. Recently, the Authority sought applications for a laborer job with the Authority. There were two applicants for this job. One applicant is the son of one of the Authority members. This son is married, having his own home, lives apart and separate from the Authority member, his father. However, the Township of Whitehall adopted a Code of Ethics which states that no member of a Township Commissioner's immediate household may be employed. However, you have given the opinion that the Ethics Code adopted by the Commissioners of Whitehall Township has no application to the Authority, which is a separate body, but if it did, that the employment of this Authority member's son would not be a violation of the Code of Ethics because the son is not a member of the "immediate family of the Authority member in question. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Harry P. Creveling, Esquire September 16, 1983 Page 2 Discussion: We will assume for purposes of this response that members of the Authority are "public officials" as they are paid other than to reimburse them for actual expenses. If the payment is intended to reimburse these individual members for actual expenses, then these individuals may not be subject to the provisions of the Ethics Act. This latter conclusion is derives from the definition of the term "public official" as set forth in the Ethics Act and from the fact that there is still some question as to whether or not an individual such as a member of an Authority who is not compensated except for expense reimbursement should be considered a "public official" as that term is defined in the Ethics Act even given the recent rulings of the Supreme Court. Specifically, the definition of "public official" currently excludes those persons who are appointed to their positions and are not compensated, other than reimbursement for actual expenses. While the ruling of the Supreme Court in Snider v. State Ethics Commission, 436 A.2d 593 (1981), may have cast some doubt upon this exclusion contained in the definition of "pnblic official" as to appointed, non - compensated officials, the State Ethics Commission has not interpreted this ruling, to date, to require non- compensated and appointed persons to be considered "public officials" subject to the provisions of the Ethics Act. Thus, if the compensation that members of this particular Authority receive represents reimbursement for actual expenses, they may be excluded from the coverage of and, therefore, in compliance with the Ethics Act. However, as indicated above, we will assume that these individuals are compensated - appointed members of the Authority and are therefore, subject to the provisions of the Ethics Act which are applicable to "public officials" and regulate the conduct of such persons. The Ethics Act states that no "public official" may use his public office for his personal gain or for the gain of a member of his immediate family. The term "immediate family" as set forth in the Ethics Act is defined as including a minor dependent child or a spouse residing in the household. Regulations of the Commission further define this term with reference to persons 18 years of ace who live in the household cf the person - filer- required to file a Financial Interest Statement during the reporting period whom the filer claimed as a dependent on the - filer's federal income tax return for the equivalent reporting period. See 65 P.S. 402 and 51 Pa. Code Section 1.1 respectively. Thus, you are correct that technically, the son of a member of this Authority would not be considered to be a member of the Authority member's "immediate family." Consequently, it would appear at first blush that the Authority member would have no restrictions vis -a -vis the appointment of or voting on the appointment of his son as a laborer for the Authority. However, the Commission has concluded that although the Ethics Act contains a reference to "immediate family" in Section 3(a), the requirements of Section 1 of the Ethics Act must also be reviewed and met. Specifically, Section 1 of the Ethics Act has not been so narrowly read by the Ethics Commission to permit voting in the circumstances which you present where a "public official" is Mr. Harry P. Creveling, Esquire September 16, 1983 Page 3 asking whether he may vote on the appointment of a non - minor - non - dependent child. In an opinion issued August 19, 1983, the Commission concluded that abstention was required where a Township Commissioner was asking whether he could participate in the Township's selection of his son who was a non - minor - non - dependent individual as a Township Road Department employee. See O'Reilly /Johnston, 83 -012. In this case, the Commission concluded that 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, the Township Commissioner must abstain from participation in any manner in the selection process of his son as a Township employee. Additionally, given that the Township selection of an employee had been narrowed down to two individuals -- the Commissioner's son and another individual -- the Commission further concluded that the Township Commissioner in O'Reilly, was required to abstain from participating in discussions, motions, voting, etc. with relation to the appointment of his son or the only other candidate apparently being considered for appointment to the post the son sought. Your factual situation and presentation is striking similar to the Commission's precedent set forth above. Accordingly, we can reach no conclusion other than that which the Commission's precedent dictates. Finally, I note that the Ethics Commission's jurisdiction to address and resolve questions and to render advice is strictly limited by the provisions of the Ethics Act. Thus, we have no authority or jurisdiction to interpret the provisions of the Code of Ethics of the Whitehall Township. This response should not be assumed to address any questions other than those presented as to the duties and responsibilities of the Authority member under the Ethics Act. Although the requirements as to abstention must be met as set forth above, even the terms and conditions of the Ethics Act, however, do not prevent the employment of the Authority member's son and such an appointment would not violate the Ethics Act per se. The requirement that the Authority member abstain given the Commission's precedent cited above, however, must be met. Conclusion: The employment of the Authority member's son under the circumstances outlined above would not violate the provisions of the Ethics Act. This response is limited to the provisions of the Ethics Act. With respect to the participation of this individual Authority member, he is advised to abstain from participating in the Authority's decision as to the appointment of an individual to hold the position in question. Such abstention includes not participating in discussions, motions, voting, etc. with relation to the appointment of his son or the only other candidate apparently to be considered at this time for this post. Mr. Harry P. Crevel i ng , Esquire September 16, 1983 Page 4 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 Sin erely, Sandra S. Chri ianson General Couns-1