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HomeMy WebLinkAbout90-553 CaltagironeMr. James B. Caltagirone 404 Hazel Street Reading, PA 19611 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 24, 1990 90 -553 Re: Conflict, Public Official, Immediate Family, Brother, School Director, Community College Trustee. Dear Mr. Caltagirone: This responds to your letter of May 22, 1990, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Public Official and Employee Ethics Law presents any restrictions upon school director from voting for the appointment of his brother to a non compensated pdsition as a community college trustee. Facts: You serve as a member of the school board of the Reading School District and your brother Joseph R. Caltagirone is presently completing his first term as a member of the board of trustees of the Reading Area Community College, hereinafter College. Your brother was appointed by the Reading School Board and serves without compensation. You anticipate that your brother will be nominated to serve a second term on the board of trustees of the College as representative of the Reading School Board. Although you do not believe that it would constitute a conflict of interest for you to vote for the appointment of your brother's nomination to the board of trustees of the College, you conclude by requesting advice as to whether such action would be appropriate under the Ethics Law. You seek an expeditious response in light of the fact that the vote is scheduled for Tuesday, May 22, 1990. Discussion: As a School Director for Reading School District, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that Section 3(a) of the Ethics Law provides: Mr. James B. Caltagirone Page 2 Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression Mr. James B. Caltagirone Page 3 thereof but merely to provide a complete response to the question presented. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since your brother is in the familial relationship delineated above, Section 3(a) of the Ethics Law would otherwise prohibit you from voting for his appointment to a given position. However, it is noted that your brother would be serving in a non compensated position on the Board of Trustees of the College. In this regard, the definition of conflict requires a use of the authority of' office to obtain a private pecuniary benefit. Since there would be no private pecuniary benefit under these facts, such an action would not constitute a conflict of interest and therefore Section 3(a) would not restrict you from voting for the appointment of your brother to the non compensated position of trustee of the College. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As Director of Reading School District, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would otherwise prohibit you from voting for the appointment of a brother who is a member of your immediate family as that term is defined under the Ethics Law; however, in this instance, you would not be precluded from voting for your brother to a non compensated position since there would be no private pecuniary benefit and consequently such action would not be a conflict under Section 3(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 Mr. James B. Caltagirone Page 4 Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 2.12. Sincerely, Vincent J. Dopko, Chief Counsel