HomeMy WebLinkAbout87-578 SchiavelloDomenick V. Schiavello
c/o Erick H. Auerbach
Chief Assistant City Solicitor
Law Department
15th Floor, Municipal Services Building
Philadelphia, PA 19102 -1692
Dear Mr. Schiavello:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
May 21, 1987
ADVICE OF COUNSEL
87 -578
Re: City Employee, Daughter, Employee Of Business On Contract With City
This responds to your letter of May 4, 1987, wherein a request for advice
under the State Ethics Act was submitted on your behalf by the Philadelphia
Office of City Solicitor.
Issue: Whether the State Ethics Act presents any prohibitions upon your
conduct as a public employee when your daughter is employed by a company doing
business with the city.
Facts: You currently serve as the Director of Automotive Services Division
for the City of Philadelphia, Department of Public Property. In this respect,
you are involved in the inspection of vehicles purchased by the city and are
responsible for determining whether the city should accept or reject delivery
of vehicles so purchased. Your daughter who is not a minor dependent has
considering accepting part -time employment with a business that currently
sells vehicles to the City of Philadelphia. In her position with this
company, your daughter would be painting custom lettering on these vehicles.
While your unit is not involved in the procurement process, you are
responsible for inspecting vehicles purchased and by the city and as part of
that duty you are responsible for inspecting the lettering on such vehicles
and have the authority to accept or reject new vehicles after the inspection
process. To date, no vehicle has been rejected for defective lettering. In
addition to the foregoing, the city purchases these vehicles through a
competitive bidding process. You have requested the advice of the State
Ethics Commission regarding whether any prohibitions are placed upon you under
the State Ethics Act in light of the foregoing situation.
Discussion: As the Director of the Automotive Services Division for the City
of Philadelphia, you are a public employee as that term is defined in the
State Ethics Act and therefore subject to the provisions of that law. 65 P.S.
§402; 51 Pa. Code §1.1. The State Ethics Act in part provides as follows:
Domenick V. Schiavello
May 21, 1987
Page 2
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).
Within the above provision of law, no public employee may use his position in
order to obtain a financial gain for 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.
From a review of the foregoing circumstances, it appears as though your adult
daughter would not be within the strictures of the definition of immediate
family as set forth in the State Ethics Act. As such, it would appear as
though there would be no prohibitions placed upon your activities as a public
employee within the above provision of the State Ethics Act. It should be
further noted that section 403(a) of the State Ethics Act also provides that
a public employee may not use his public position to obtain a financial gain
for a business with which one is associated. Business with which one is
associated is defined as follows:
Section 2. Definitions.
"Business with which he is associated." Any business in
which the person or a member of the person's immediate
family is a director, officer, owner, employee or holder
of stock. 65 P.S. 402.
In the event that your daughter had been within the definition of immediate
family member as previously set forth, then you would have been considered
associated with this business as a result of the definition set forth above in
that a member of your immediate family would have been an employee of the
business. In light of the fact, however, that your daughter is not a member
of your immediate family as set forth in the State Ethics Act, this
consideration would not be relevant.
In addition to the foregoing however, the State Ethics Commission is also
authorized to address other areas of conflicts of interest. 65 P.S. §403(d).
Generally, the parameters of the types of activities encompassed by this
provision of law have been reviewed in light of the preamble to the State
Ethics Act which enunciates the legislative intent of the law. That intent,
as set forth in section 1 thereof, is to ensure that the financial interests
Domenick V. Schiavello
May 21, 1987
Page 3
of a public official do not conflict with the public trust. 65 P.S. §401. A
conflict of interest will arise in any situation where the official is serving
one or more interests that are adverse. Alfano, 80 -007. As a result of this
provision of law and in light of the intent of the State Ethics 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 involves his adult son, O'Reill , 83 -012; adult daughter, Cumberledge,
No. 216 -R, or sister, Leete, 28 005. Thus, within these previously determined
opinions of the Commission, it would be the better practice for you as a
public employee to refraim from participating in the review or inspection of a
matter in which your adult daughter has been involved. In the event that you
would refraim from participating in such inspections, then the State Ethics
Act would appear to place no other restrictions upon your conduct as a public
employee.
In order to complete, it should also be noted that the State Ethics Act
provides as follows:
Section 3. Restricted activities.
(c) No public official or public employee or a member of
his immediate family or any business in which the person
or a member of the person's immediate family is a
director, officer, owner or holder of stock exceeding 5%
of the equity at fair market value of the business shall
enter into any contract valued at $500 or more with a
governmental body unless the contract has been awarded
through an open and public process, including prior public
notice and subsequent public disclosure of all proposals
considered and contracts awarded. Any contract made in
violation of this subsection shall be voidable by a court
of competent jurisdiction if the suit is commenced within
90 days of making of the contract. 65 P.S. 403(c).
In the instant situation it appears as though this provision of law would not
be applicable. This is so specifically in light of the fact that it does not
appear as though your daughter is either a director, officer, owner or holder
of stock exceeding 5% of the equity of the entity by which she is employed. As
such, the above provision of law would not be applicable and would place no
prohibitons upon your conduct in the instant situation.
In the event, however, that a situation should develop wherein additional
conflicts of interest should arise, you may wish to seek the further advice of
this Commission. You abstention in matters regarding the inspection of
Domenick V. Schiavello
May 21, 1987
Page 4
vehicles on which your daughter has performed work should also be recorded in
appropriate department files. Finally, in order to be complete we note that
the State Ethics Act also provides as follows:
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).
Reference is made to the above provision of law, not to imply that there has
or will be any implication thereof, but merely to provide a complete response
to the question that has been posed.
Conclusion: The State Ethics Act presents no absolute prohibitions upon the
employment of your adult daughter by a business that is on contract with the
City of Philadelphia. It would, however, be the better practice for you as a
public employee to refraim from participating in the inspection of any work
that has been performed by your adult daughter. Your abstention in such
matters should be appropriately recorded in department records. Additionally,
your conduct should be guided by the other provisions of the State Ethics Act
as noted 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.
Domenick V. Schiavello
May 21, 1987
Page 5
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.
Actin General Counsel