HomeMy WebLinkAbout87-547 HimlerSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
April 27, 1987
ADVICE OF COUNSEL
Thomas A. Himler, Jr., Esquire
Derry Township Solicitor
650 Derry Road
Derry, PA 15627
Re: Township Supervisor, Son, Township Employee
87 -547
Dear Mr. Himler:
This responds to your letter of April 6, 1987, wherein you
advice of the State Ethics Commission.
Issue: Whether the State Ethics Act presents any prohibitions
Supervisor participating in the Township's hiring of his son.
Facts: You advise that you currently serve as the Derry Township Solicitor
and have requested the advice of the State Ethics Commission in relation to a
question that has been posed by the Derry Township Supervisors. The Township
Supervisors will be hiring a laborer for the work force of the township, and
the individual being considered is a son of one of the township supervisors.
Specifically, the Derry Township Supervisors have requested advice as to
whether the supervisor who is the father of this individual may participate in
the motion to hire the son and whether he may vote or second the motion.
Discussion: As a township supervisor, the individual here in question would
clearly be a public official as that term is defined in the State Ethics Act.
65 P.S. §402. As such, his conduct must conform to the requirements of that
law. See, Sowers, 80 -050; Welz, 86 -001. 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).
requested the
upon a Township
Thomas A. Himler, Jr. Esquire
April 27, 1987
Page 2
Within the above provision of law, no public official may use his position in
order to obtain a financial gain for a member of his immediate family. A
public official may not use confidential information obtained through his
public position for similar purposes. The State Ethics 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.
While you have not provided any information in relation to the specifics of
this situation, you are advised that if the supervisor's son is within the
above definition, then the supervisor would be absolutely prohibited from
participating in any matter related to the township's consideration, review,
or employment of this individual's son. The supervisor would be required to
abstain under the above provision of the State Ethics Act from the township's
decisions in this matter.
In the event that the son of the supervisor is not within the above
definition, then section 403(a) would not be a prohibition to the supervisor's
conduct as set forth in your letter of request. His conduct, however, must be
considered also, under other provisions of the State Ethics Act including
section 403(d). 63 P.S. §403(d). Generally, this provision of law would
prevent a public official from participating in situations wherein the
official is serving one or more interests that are adverse. See, Alfano,
80 -007. Generally, the parameters of the type of activities encompassed by
this provision of law had been reviewed in light of the preamble to the State
Ethics Act which enunciates the legislative intent of the law. 65 P.S. §401.
Within this provision, a public official or employee is to ensure that his
personal financial interests do not present a conflict with the public trust.
See, Nelson, 85 -009. As a result of this provision of law, and in light of
the intent of the State Ethics Act, as enunciated in section 401 of the Act,
this Commission has on a number of occasions determined that the definitional
limitations applicable to section 3(a) of the State Ethics Act, are not
relevant to questions that arise under section 403(d) or section 1 of the law.
As a result, this Commission has previously determined that it would be the
better practice for a public official to abstain from participating in matters
that involve their adult son, See, O'Reilly, 83 -012; adult daughter,
Cumberledge, #216 -R or their sister, Leete, 82 -005. Thus, within these
previously determined opinions of the Commission, it would be the better
practice for this supervisor to abstain from participating in a matter wherein
his son would be effected financially through his actions. See also, Spencer,
(Borough Councilmember abstaining from pay increase for son.) As a result of
the foregoing, while section 403(a) may present no specific prohibitions upon
the conduct of this supervisor in light of the defintional restrictions
Thomas A. Himler, Jr. Esquire
April 27, 1987
Page 3
attendant thereto, section 403(d), of the State Ethics Act, and the general
intent and purpose of the law would appear to indicate that the public
interests would be better served by having this supervisor abstain from
participating in the matter relating to his son.
Conclusion: Consistent with past opinions of this Commission and the
provisions of the State Ethics Act, which permits the Commission to address
other areas of conflicts of interest, it would be the better practice for this
township supervisor not to participate in the township's decisions and
considerations in relation to the employment of his son as a township
laborer.
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.
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