HomeMy WebLinkAbout87-638 DavisWilliam R. Davis, Esquire
41 East High Street
Waynesburg, PA 15370 -1881
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
December 7, 1987
ADVICE OF COUNSEL
87 -638
Re: Conflict of Interest, Township Supervisor, Township Auditor, Son
Dear Mr. Davis:
This responds to your letter of November 12, 1987, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether the State Ethics Act presents any restrictions upon a
township supervisor from voting on the appointment of his son to the position
of township auditor.
Facts: You state that you represent the supervisors of Springhill Township,
Greene County, Pennsylvania wherein the supervisors are considering the
appointment of Brian L. Mason, who is the son of one of the supervisors to
fill one of two vacant postions that have opened up as a result of
resignations. You further state that you contacted staff of this Commission
who advised you that there would be no difficulty in making the appointment
provided Mr. Mason's father abstain from voting. You conclude by requesting
advice as to whether the above action would be appropriate under the Ethics
Act.
Discussion: As a township supervisor for Springhill Township, Greene County,
Pennsylvania, Mr. Mason is a "public official" as that term is defined in the
Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As "such, Mr. Mason is subject to
the provisions of the Ethics Act and the restrictions therein are applicable
to him.
Section 3(a) of the Ethics Act provides:
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 R. Davis, Esquire
December 7, 1987
Page 2
Section 3(a) basically provides that a public official may not use his
public office or confidential information to obtain a financial gain other
than compensation as provided for by law for himself or a member of his
immediate family. Under this provision, the Ethics Commission has determined
that the use of office by a public official such as through voting to obtain a
gain or benefit for himself or a member of his immediate family which is not
provided for in law constitutes a "financial gain other than compensation
provided for by law." See McCutcheon v. State Ethics Commission, 77 Pa.
Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa.
Comm. (1987) filed on September 18, 1987 at 834 C.D. 1986. Of course,
under this provision, you may not use your public position to secure any
financial gain for yourself or your immediate family.
Section 2 of the Ethics Act provides:
Section 2. Definitions.
"Immediate family." A spouse residing in the person's
household and minor dependent children. 65 P.S. 402.
This Commission has determined that when a public official has voted to
appoint a member of his immediate family to a public position that such action
is in violation of Section 3(a) of the Ethics Act. See Rocovich, 356 -R. In
fact, this Commission has even determined that the hiring of a son who is
neither a minor or dependent would create the appearance of a conflict of
interest under the Ethics Act. See O'Reilly /Johnson, 83 -012. See also
Modrovich, No. 585.
In the instant situation, Mr. Mason could not vote nor participate
regarding the appointment of his son, Brian L. Mason, as an auditor for the
township. Mr. Mason must publicly note his abstention of record and the
reason for his abstention.
Section 3(b) of the Ethics Act 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 R. Davis, Esquire
December 7, 1987
Page 3
Section 3(b) of the Ethics Act must be referenced in order to provide a
complete response to your inquiry. Under Section 3(b) of the Ethics Act cited
above, which you must observe, you must neither offer nor accept anything of
value on the understanding or with the intention that your official judgment
would be influenced thereby. It is assumed such a situation does not exist
here. This Section is referenced not to indicate that any such activity has
been or will be undertaken but in an effort to provide a complete response to
your inquiry.
Lastly, this Commission has only addressed your question under the Ethics
Act; it has not addressed the question under any other statute, code,
ordinance, regulation or other code of conduct other than the Ethics Act.
Conclusion: As a township supervisor, Mr. Mason is a public official subject
to the provisions of the State Ethics Act. Since his son is a member of his
"immediate family" as that term is defined in the Ethics Act, Mr. Mason may
neither vote nor participate in the appointment of his son to the position of
township auditor. Mr. Mason must publicly note his abstention of record in
the matter as well as the reason for his abstention.
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 day's of service of this Advice pursuant
to 51 Pa. Code 2.12.
Sincerely,
Vincent J. Dopko
General Counsel