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Home My WebLink About95-540 FetzkoSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 24, 1995 Donald C. Fetzko, Esquire Solicitor, Borough of West Mifflin 3714 Homestead - Duquesne Road West Mifflin, PA 15122 95 -540 Re: Conflict, Public Official /Employee, Civil Service Commission Member, Borough, Applicant, Testing, Commissioner used as a Character Reference. Dear Mr. Fetzko: This responds to your letters of March 1, and March 10, 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 civil service commission member who drafts, administers, and scores the tests for civil service applicants when one of these applicants listed this particular civil service commissioner as a character reference on his application for employment with the borough. Facts: A Member of the Civil Service Commission of the Borough of West Mifflin seeks advice concerning the propriety under the Ethics Law of drafting, administering, and scoring the civil service test of an applicant who used him as a character reference on an employment application with the Borough of West Mifflin. The final test score of a civil service applicant is the average of three scores from three Commissioners. The Commissioner requesting the advice is one of the three Commissioners who would score the candidate's test. The Commissioner is not related to the civil service applicant and would not receive a pecuniary benefit if this applicant was eventually hired by the Borough. 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 Fetzko, Donald C., Esquire, 95 -540 March 24, 1995 Page 2 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. As Civil Service Commissioner for the Borough of West Mifflin, the individual is a public official as that term is defined under the Ethics Law, and hence he 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. 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. Fetzko, Donald C., Esquire, 95- 540.. March 24, 1995 Page 3 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 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 the Civil Service Commissioner, a member of his immediate family, or a business with which he or an immediate family member is associated does not receive a private pecuniary benefit as a result of scoring the Civil Service test of an applicant who listed the Commissioner as a character reference. 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 Civil Service Commissioner for the Borough of West Mifflin, the individual is a public official subject to the provisions of the Ethics Law. Under Section 3(a) of the Ethics Law a civil service commissioner of a borough who must score the tests of civil service applicants and who is listed as a character reference for one of those applicants does not have a "conflict of interest" in scoring the tests of that particular applicant when such activity 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. Fetzko, Donald C., Esquire, 95-540 March 24, 1995 Page 4 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 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 513.2(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. cerely, Vincent Dop o Chief Counsel