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HomeMy WebLinkAbout88-660 SiegelArthur B. Siegel, Esquire 511 Broad Street Milford, PA 18337 Dear Mr. Siegel: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 5, 1988 88 -660 Re: Conflict of Interest, Municipal Authority, Secretary, Appointment of Father as Treasurer This responds to your letter of October 14, 1988 in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any restrictions or prohibition upon a secretary- collector of a municipal authority relative to the potential hiring of her father as treasurer of the municipal authority. Facts: You state that you are the solicitor to the Milford Borough Municipal Authority and you have telephonically advised that you are asking the above question on behalf of the secretary- collector of said authority. You state that the authority supplies water to Milford Borough and parts of two townships and that the position of secretary- collector is a part - time appointive post with the responsibility of sending and collecting bills. You state that the treasurer's job is also appointive and consists of receiving and paying bills that are approved at monthly meetings of the authority. You conclude by requesting advice as to whether it would be a conflict for the secretary- collector's father being appointed to the vacancy of treasurer of the authority. Discussion: As secretary- collector of the municipal authority, the individual is a public employee as that term is defined under the Ethics Act. 65 P.S. 5402; 51 Pa. Code S1.1. As such, the conduct of the secretary - collector is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him /her. Arthur B. Siegel, Esquire December 5, 1988 Page 2 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Under Section 3(a) of the Ethics Act quoted above, a public official or employee may not serve the interest of two persons, groups or entities whose interests may be adverse. See Alfano, Opinion 80 -007. The Ethics Act, however, does not prohibit a municipal authority from hiring an individual who is related to an employee of that authority provided that the public employee does not use public office to advance the job opportunity of his /her member of immediate family or conversely use public office to eliminate potential competitors for that position. In this case the father of the secretary- collector is not a member of his /her immediate family as that term is defined under the Ethics Act; furthermore, it appears, and it is so assumed, that the secretary- collector does not have any authority or input as to the hiring vis -a -vis the position of treasurer. It is expressly assumed for purposes of this advice that the secretary - collector has not used public office to advance the job prospects Arthur B. Siegel, Esquire December 5, 1988 Page 3 of his /her father; in addition, it is assumed that the hiring would be done by the board of the municipal authority and that the secretary - collector in his /her position would not participate as to the selection process. 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. Conclusion: As secretary- collector of a municipal authority, the individual is a public employee subject to the provisions of the State Ethics Act. Under the facts and circumstances outlined above, the Ethics Act would not preclude the hiring of the secretary- collector's father by the municipal authority board to a position of authority treasurer, subject to the qualifications as noted above. Lastly, the propriety of the 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. such. This letter is a public record and will be made available as 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. S' .0- Vincent J. Dopko, General Counsel