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HomeMy WebLinkAbout88-560 CampbellRichard L. Campbell, 1500 South Atherton Street State College, PA 16801 Dear Mr. Campbell: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 28, 1988 r 88 -560 Re: Conflict of Interest, Public Official, Immediate Family, Municipal Authority Manager, Appointment of Sister by Governing Body This responds to your letter of March 11, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibitions upon township public officials from appointing an individual to a municipal authority when that individual's sister is the authority manager. Facts: In your advice request, you state that you are the solicitor for the Spring- Benner - Walker Joint Authority, hereinafter Authority, which is a municipal authority incorporated by the townships of Spring- Benner - Walker in Center County, Pennsylvania. Further, you have advised in a telephonic communication that you also represent Walker Township. You then state that each of the municipalities appoints a specified number of members to the Authority who serve in staggered terms. You then note that Walker Township intends to appoint an individual to the Authority whose sister is employed by the Authority as its Manager. You conclude by requesting advice from the Ethics Commission as to whether there would be any conflict under the Ethics Act regarding the appointment of this individual. Discussion: The supervisors for Walker Township are pudic officials within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, they are subject to the provisions of the Ethics Act. Richard L. Camp'pelI, Esquire April 28, 1938 Page 2 Initially, it should be noted that since the supervisors of Walker Township are the public officials who are taking the action in appointing this individual to a position with the Authority, it is their conduct which must be reviewed under the following provisions of the Ethics Act. 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). Section 3(a) basically provides that a public official •or employee 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 or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of office by a public official 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." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law. Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. S402. Richard L. Campbell, Esquire April 28, 1988 Page 3 Since immediate family is defined to only include a spouse or minor dependent child, the provision of Section 3(a) would not include a sister. Further, since the individual is a sister to the authority Manager but not a sister of the supervisors in Walker Township who would be making the appointment, that individual is not a member of the "immediate family" of any of the Walker Township Supervisors. Therefore, under Section 3(a) of the Ethics Act and the definition of "immediate family ", there is no prohibition upon Walker Township Supervisors as to appointment of an individual as a member of the Authority when that individual's sister is the Authority Manager. Section 3(b) of the Ethics Act provides: (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 employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). 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 a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his 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, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Richard L. Campbell, Esquire April 28, 1988 Page 4 such. Conclusion: The Walker Township Supervisors are public officials subject to the provisions of the State Ethics Act. Under Section 3(a) of the Ethics Act, there is no prohibition upon the Walker Township Supervisors from appointing an individual to the Authority who is not related to the township supervisors but who is the sister to the Authority Manager. Lastly, the propriety of th, proposed conduct has only been addressed under the Ethics Act, Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding ini {Led by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has iisclosed 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 Finally, if you disagree with this Advice or if you haie 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 former Opinion from the Commission will be issued. Any such appeal must be mace, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, i Vincent J. Dopko, General Counsel