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HomeMy WebLinkAbout95-539 Ruffingn . STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 24, 1995 Kenneth W. Ruffing President of Council, Borough of West Mifflin 213 Fifth Avenue West Mifflin, PA 15122 95 -539 Re: Conflict, Public Official /Employee, Council Member, Borough, Applicant, Police Officer, Council Member used as Character Reference. Dear Mr. Ruffing: This responds to your letter of February 27, 1995, 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 borough council member who must evaluate candidates for employment as police officers when one of the candidates used the council member as a character reference in his application for employment. Facts: In your capacity as a Council Member for the Borough of West Mifflin, you must evaluate candidates for employment as police officers for the Borough. One of the applicants, who is an acquaintance and not a family member, listed you as a character reference on his application for employment. You seek advice from the Commission concerning the propriety of evaluating the police officer applicant. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. Ruffing, Kenneth W., 95 -539 March 24, 1995 Page 2 As a Council Member for the Borough of West Mifflin, 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. 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. 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 of 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. 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 anything 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 been or will be any transgression thereof but merely to provide a Ruffing, Kenneth W., 95 -539 March 24, 1995 Page 3 complete response to the question presented. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3 (a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. There is no conflict of interest under the Ethics Law if, as a Council Member, you must evaluate a candidate for employment who listed you as a character reference provided that you, a member of your immediate family, or a business with which you or a member of your immediate family is associated does not receive a private pecuniary benefit as a result of your evaluation. 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 not addressed herein is the applicability of the respective municipal code. Conclusion: As a Council Member for the Borough of West Mifflin, you are a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law, a council member of a borough who must evaluate candidates for employment and who is listed as a character reference for one of those candidates does not have a "conflict of interest" if the decision to hire that particular candidate does not pecuniarily benefit himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Ruffing, Kenneth W., 95 -539 March 24, 1995 Page 4 Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa. Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel