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HomeMy WebLinkAbout88-577 McCaigueMr. Richard T. McCaigue Office of Treasurer Potter County Coudersport, PA 16915 Dear Mr. McCaigue: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 6, 1988 88 - 577 Re: Conflict of Interest, County Treasurer, Payment of salary to Assistant District Attorney who is daughter of District Attorney This responds to your letter of April 22, 1988 in which yov requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions or prohibition upon your payment as County Treasurer from county funds as to the salary for the Assistant District Attorney who is the daughter of the District Attorney. Facts: You state that in your capacity as Treasurer for the Potter County, you are charged with the responsibility of signing checks in the disbursement of county funds subject to the requirements that there are sufficient funds to cover the draft being executed and that the funds are for a proper expenditure of county monies. After noting that a vacancy occurred in the Office of District Attorney which was filled by the appointment of Mr. John Duvall, you state that Mr. Duvall then appointed his daughter Martha as Assistant District Attorney with an annual salary that has been approved by the Potter County Salary Board in the amount of $10,400. You then note that there is a county personnel policy which contains an antinepotism clause but you state the Board of Commissioners of Potter County adopted a resolution which would waive that provision regarding the appointment of District Attorney Duvall's daughter as Assistant District Attorney. You state that John Duvall and his daughter practice law as a partnership under the firm name of Duvall and Duvall and that each will undoubtedly share the benefit of any Mr. Richard T.McCaigue June 6, 1988 Page 2 compensation paid to the other as members of the partnership. You then conclude by referencing the State Ethics Act and question whether you may make payment of the salary to the Assistant District Attorney through the expenditure of county funds. Discussion: At the outset, it must be noted that the State Ethics Commission may only address your question within the purview of the Ethics Act. The applicability of any other statue, code, ordinance, regulation or other code of conduct other than the Ethics Act cannot be considered in that they do not involve an interpretation of the Ethics Act. Specifically, not addressed in the advice is the applicability of the County Code for the above reason. Lastly, this advice may only address the propriety of your proposed conduct under the Ethics Act. 65 P.S. 407(9)(i). As the Treasurer for Potter County, you are a "public official" within the definition of that term as set forth in the Ethics Act. McCaigue, Order 392; 65 P.S. S 402; 51 Pa. Code S 1.1. 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 coiifiden ..ial 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). Mr. Richard T. McCaigue June 6, 1988 Page 3 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. Under Section 3(a) quoted above, there does not appear to be any prohibition on your issuing a check in paymert of the salary of this county employee. It is clear from the wording of Section 3(a) that although you would be using your public office to issue this check, you personally would not be receiving any financial gain for yourself or a member of your immediate family or a business with which you are associated. Therefore, there is n. prohibition under Section 3(a) of the Ethics Act for you to issue a check in the payment of the salary of Assistant District Attorney, Attorney Martha Duvall. Conclusion: As Treasurer for Potter County, you are a public official subject to the provision of the State Ethics Act. There is no prohibition under the Ethics Act for you as Treasurer to issue a check in payment of salary of the county employee who is the Assistant District Attorney through the expenditure of county funds. Lastly, the propriety of your 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 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 former 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 52.12. cerely, Vincent . Dopko, General Counsel