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HomeMy WebLinkAbout90-565 WellingtonMr. James H. Wellington 19 Victoria Drive, R.D. #1 Finleyville, PA 15332 Dear Mr. Wellington: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 21, 1990 Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. 90 -565 Re: Conflict, Public Official, Immediate Family, Municipal Authority, Applications for Employment by Relatives. This responds to your letter of May 1, 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 a member of a municipal authority from voting or participating as to the employment of various relatives to positions with the authority. Facts: As chairman of the board of the Peters Creek Sanitary Authority, you state that you have an office manager and bookkeeper in the office but it soon may be necessary to hire a replacement part -time bookkeeper which position may eventually become full -time. A question has arisen regarding the propriety of accepting applications from qualified relatives of authority board members. You reference a conversation with staff of the State Ethics Commission and assert that you were advised that relatives could be employed as long as the board members did not participate in the decision making process. You conclude by requesting an opinion on this matter so that you may pies &nt it to any board member who would have doubts about the propriety of relatives being employed by the authority. Discussion: As a chairman for Peters Creek Sanitary Authority, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Mr. James H. Wellington Page 2 (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 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 thereof but merely to provide a complete response to the question presented. Mr. James H. Wellington Page 3 Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and if the applying relative is not within the familial relationship delineated above, Section 3(a) of the Ethics Law would not prohibit that board member from participating or voting for the appointment of the relative who is not a member of his immediate family. Baker, Opinion 89 -016. If however, the relative who is applying is within the definition of immediate family, Section 3(a) of the Ethics Law would prohibit the board member from participating or voting for that particular relative. Davis, Opinion 89 -012. Thus, if he were to participate or vote, such action would be a use of the authority of office to obtain a private pecuniary benefit to the relative, who is encompassed within the definition of immediate family, in contravention of the Ethics Law. Section 3(j) of the Ethics Law requires public disclosure of the conflict on the matter as well as disclosing same in a written memorandum filed with the person responsible for recording the minutes. 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 chairman of Peters Creek Sanitary Authority, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would prohibit a board member from voting on the appointment of a relative who is within the definition of immediate family as that term is defined under the Ethics Law and he must comply with the disclosure requirements of Section 3(j) of the Ethics Law outlined above; however, if the relative is not within the definition of immediate family, then he may vote and participate as to the employment of that individual. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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 Mr. James H. Wellington Page 4 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. S cerely, D 14 Vincent J. Dopko, Chief Counsel