HomeMy WebLinkAbout87-580 LiekarMr. James P. Liekar, Esquire
One West Pike Street
Canonsburg, PA 15317
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
May 21, 1987
ADVICE OF COUNSEL
87 -580
Re: Township Supervisor, Conflict of Interest, Spouse, Son, Township
Employees
Dear Mr. Liekar:
This responds to your letter of May 13, 1987, wherein you requested the
advice of the State Ethics Commission.
Issue: Whether a township supervisor may participate in the hiring of his
minor dependent son, his adult son, or his spouse.
Facts: On behalf of the Chartiers Township Board of Supervisors, you have
requested the advice of the State Ethics Commission regarding the propriety of
the township supervisors participation in the hiring of certain family
members. Specifically, you have requested the advice of the Commission
regarding whether a township supervisor may vote to hire his minor dependent
son when that individual applicant is considered along with other individuals
applying for a position of employment with the township. You have also
requested the advice of the Commission regarding whether a supervisor may
participate in the hiring of his son, who is not a minor dependent child and
who does not contribute to the family support. Additionally, you have
requested the advice of the Commission regarding whether a supervisor may
participate in hiring of his spouse to a position of employment with the
township under situations where the spouse may or may not contribute to the
family support.
Discussion: Township supervisors are clearly public officials within the
purview of the State Ethics Act and therefore subject to the provisions
thereof. 65 P.S. §402; Sowers, 80 -050; Welz, 86 -001. The State Ethics
provides in part 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).
Mr. James P. Liekar, Esquire
May 21, 1987
Page 2
In addition to the foregoing, the Act also provides:
Section 2. Definitions.
"Immediate family." A spouse residing in the person's
household and minor dependent children. 65 P.S. 402.
Within the above provision of law, no public official may use his position or
any confidential information obtained in that public position to obtain a
benefit for a member of his immediate family in the form of a financial gain.
Generally, within the above provision of law, this Commission has on a number
of previous occasions determined that public officials may not participate in
matters regarding the hiring of their minor dependent children and spouse.
The family members falling within the above definition would clearly fall
within the parameters of section 403(a) of the State Ethics Act and therefore,
a public official who would use his position by voting to hire an individual
within the purview of that section of the law would be acting contrary to
section 403(a) of the State Ethics Act. See, Marcinek, 399 -R; Himler,
87 -547.
In the event that the son of the township supervisor is not within the
above definition then section 403(a) would not be a prohibition upon the
supervisor's conduct as set forth in your letter of request. His conduct,
however, must also be considered under other provisions of the State Ethics
Act including section 403(d). 65 P.S. §403(d). Generally, this provision of
law allows the State Ethics Commission to address other areas of possible
conflicts of interest. The paramets 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. 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. 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. Alfano, 80 -007. As a result of this provision of
law, and in light of the State Ethics Act as enunciated in section 401
thereof, this Commission has on a number of occasions determined that the
definitional limitations applicable to section 403(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, for example their adult son, O'Reilly, 83 -012; adult
daughter, Cumberledge, No. 216 -R, or sister, Leete, 82 -005. Thus, within
these previously determined opinions of the Commission, it would be the better
practice for the supervisor to abstain from participating in the matter
regarding his adult son even though such may not be technically required under
section 403(a) of the State Ethics Act.
Mr. James P. Liekar, Esquire
May 21, 1987
Page 3
In addition to the foregoing, and in light of the fact that the family
members of certain public officials may be obtaining to attempting to obtain
positions with the governmental body, it is suggested that the hiring in
relation to these positions be conducted through an open and public process.
Such would require prior public notice of the employment possibilities, and
the public disclosure of the applications received and identification of those
who have been hired. Additionally, public officials who have abstained from
participating in the hiring process should make their abstention publicly
known and have such recorded in appropriate township records.
Conclusion: Consistent with past opinions of this Commission and the
provisions of the State Ethics Act, a public official may not participate in
the hiring of a minor dependent child or a spouse residing in his household.
Additionally, it would be the better practice for a public official to abstain
from participating in the hiring of his adult children who are not within the
definition of immediate family as set forth in the State Ethics Act. The
hiring process should be conducted through an open and public process and all
abstentions should be publicly noted and appropriately recorded.
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.
Sin
ohn`u . ontino
Act' g General Counsel