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HomeMy WebLinkAbout86-591 BailyWilliam M. Baily, Esquire 52 Church Street Waynesburg, PA 15370 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 August 11, 1986 ADVICE OF COUNSEL 86 -591 Re: Conflict of Interest, Borough Councilmember, Spouse, Employee, Municipal Authority Dear Mr. Baily: This responds to your letter of July 9, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether the Ethics Act places any prohibitions upon the spouse of a borough councilmember being employed by a municipal authority; the members of which are appointed by council. Facts: As solicitor for the Borough of Greensboro, you have requested the advice of the State Ethics Commission. Specifically, you advise that Mr. Shirl Vernon is a member of the Greensboro Borough Council. His wife, Neila Vernon, is seeking employment with the Dunkard Valley Joint Municipal Authority. The horough council appoints three members to the five member board of that authority. Greenshoro Borough Council has made no appointments to the board of the authority during the term of Mr. Vernon. Specifically, you have asked whether any conflict of interest would be presented if Mrs. Vernon accepted a position of employment, as secretary, with the authority while her husband served as a member of the horough council. Discussion: As a member of borough council, Mr. Vernon would clearly be a public official as that term is defined in the State Ethics Act. 65 P.S. 5402. As such, his conduct must conform to the requirements of that Act. Domalakes, 85 -010. Generally, the State Ethics Act provides as follows: Section 3. Restricted activities. (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). William M. Baily, Esquire August 11, 1986 Page 2 Within the above provision of law this Commission has, on a number of occasions, determined that a public official may not use his public position in order to obtain any financial gain for himself or a member of his immediate family. This would include participating to any extent in a matter that related to the public official or to a member of his immediate family. The Act defines member of one's immediate family as follows: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Mrs. Vernon is clearly a member of Mr. Vernon's immediate family as defined in the State Ethics Act. As such, Mr. Vernon would be prohibited from using his public office in order to obtain a financial gain, in the form of employment, for his wife. We note in the instant situation, however, that Mrs. Vernon is not attempting to become employed with the borough council. She will be seeking employment with a separate and distinct body, the municipal authority. It is clear that municipal authorities are independent of the municipalities which have created them. See, Commonwealth v. Erie Metropolitan Transit Authority, 444 Pa. 345, 281 A.2d 882 (1971). See also, Forney v. State Ethics Commission, 56 Pa. Commw. Ct. 539, 425 A.2d 66, (1981). As a result, it is the members of the municipal authority who are independently responsible for hiring their staff. The borough council would not participate to any degree in this particular process. As such, it is unlikely that a member of the borough council could use his public position to obtain a financial gain for his spouse in this situation. We assume, of course, that there is adherence to the requirements of Section 3(b) of the Ethics Act which provides: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). William M. Baily, Esquire August 11, 1986 Page 3 Section 3(b) would be implicated if a councilman were to appoint a certain candidate to the authority with the understanding that the councilman's family member would have continuing employment with the authority. We mention this section of the Ethics Act not to imply any impropriety or suggest that the Commission believes that this section has or will be violated, but to provide a complete response to your question. While previous Ethics Commission opinions have advised that a member of a municipality would not be restricted from appointing a member to the authority when his spouse is employed there, such abstention would alleviate any concern that the above provision of law has been implicated. In addition to the above provisions of law, we also note that the Ethics Commission may address other areas of possible conflicts of interest. 65 P.S. §403(d). The parameters of the activities encompassed by this provision of law generally are determined through the review of the intent and purpose of the Ethics Act. The Ethics Act was promulgated in order to ensure the public that the financial interests of their officials do not conflict with the public trust. In this respect,,while we cannot envision every potential situation which may develop in the future, you are advised that in the event that the borough council is called upon to address an issue presented by the municipal authority, which somehow relates to or directly effects Mrs. Vernon, then Mr. Vernon must abstain from participating in such a matter. Such abstention would be required only in those situations which would require borough council action that would somehow inure to the benefit of Mrs. Vernon. If such a situation should arise, the fact that Mr. Vernon has abstained from participating in the matter should be publicly noted and appropriately recorded in the borough minutes. The reason for his abstention should also be noted. As we have noted above, we cannot envision every potential conflict of interest situation and therefore, you are advised that the further advice of this Commission may be necessary at some future point in time. Conclusion: The State Ethics Act places no per se prohibition upon the service by an individual as a borough councilmember when his wife is employed by a municipal authority to which the borough appoints several members. The borough councilman may not participate, to any extent, in any matter that relates to or will result in a benefit being accorded to his wife. 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. William M. Baily, Esquire August 11, 1986 Page 4 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. Si nc n Gener• Counsel