Loading...
HomeMy WebLinkAbout91-595 MeansSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 15, 1991 Mr. Charles M. Means, Esquire 91 -595 Markel, Schafer & Means, P.C. 1120 Grant Building Pittsburgh, PA 15219 Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office, Vote, Employment, Contracting, Immediate Family, Grandparent, Grandchild. Dear Attorney Means: This responds to your letters of September 17, 1991 and September 25, 1991 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a Township Supervisor with regard to voting in favor of the Township hiring or contracting with a grandchild of the Supervisor. Facts: As Solicitor for Harmar Township, you seek the advice of the State Ethics Commission on behalf of a Township Supervisor. You inquire as to whether it would be a conflict of interest for the Township Supervisor to vote in favor of the Township hiring or contracting with a grandchild of the Supervisor. You specifically inquire as to whether grandparents or grandchildren are considered to be members of the immediate family of a public official or public employee within the meaning of the Ethics Law. Discussion: As a Supervisor for Harmar Township, the Township Supervisor is a public official as that term is defined under the Ethics Law, and hence the Supervisor is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. Mr. Charles M. Means, Esquire October 15, 1991 Page 2 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 thereof but merely to provide a complete response to the question presented. Section 3(f) of the Ethics Law provides: Mr. Charles M. Means, Esquire October 15, 1991 Page 3 Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts - are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of Mr. Charles M. Means, Esquire October 15, 1991 Page 4 members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain as well as file a written memorandum to that effect with the person recording the minutes or supervisor. Turning to your specific inquiries, grandparents or grandchildren are not considered to be members of the "immediate family" of a public official or public employee as defined in the Ethics Law, and set forth above. See, Baker, Opinion 89 -016. Thus, Section 3(a) of the Ethics Law would not be implicated by the Township hiring or contracting with a grandchild or a grandparent of the Supervisor. Furthermore, Section 3(f) of the Ethics Law by its own terms applies to contractual situations involving the public official or public employee, his spouse or child, or any business in which the person or his spouse or child is associated. Section 3(f) of the Ethics Law would not be extended to contractual arrangements with a grandchild or grandparent of a public official /employee. 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. Specifically note addressed herein is the applicability of the Second Class Township Code. Conclusion: As a Supervisor for Harmar Township, the Township Supervisor is a public official subject to the provisions of the Ethics Law. A grandparent or grandchild is not a member of the immediate family of a public official /employee as the term "immediate family" is defined under the Ethics Law. Mr. Charles M. Means, Esquire October 15, 1991 Page 5 Neither Section 3(a) nor Section 3(f) of the Ethics Law would be implicated by the Township hiring or contracting with a grandchild or grandparent of the Supervisor. 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. 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 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. Sincerely, Vincent JJ Dopko Chief Counsel