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HomeMy WebLinkAbout95-611 MyersDear Mr. Myers: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF October 23, Jerry A. Myers, Chief Clerk Susquehanna County Commissioners P.O. Box 218 Court House Montrose, PA 18801 COUNSEL 1995 95 -611 Re: Conflict, Public Official, Immediate Family, Son -in -law, Business with which Associated, Management of Retirement Funds. This responds to your letters of September 15 and September 19, 1995 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 County Retirement Board from participating in the selection of a firm to manage and administer the County's retirement funds if the Member's son -in -law is the local representative for one of the firms under consideration. Facts: As the Chief Clerk of Susquehanna County and as a voting member of Susquehanna County's Retirement Board, you request an advisory from the State Ethics Commission. The County Retirement Board has been interviewing approximately (11) different firms as to the management and administration of the County retirement funds which total approximately $7.5 million. Your son -in -law is the local representative for one of these firms, the Equitable Group. Two members of the five - Member Board firmly believe that Equitable offers the best program of all proposals heard. Two other members believe just as firmly that another company's offer is best. So far, you have abstained from voting for Equitable because you have felt that there may be a conflict of interest. You state Myers, Jerry A., Chief Clerk, 95 -611 October 23, 1995 Page 2 that you do believe that Equitable is the better of the two companies receiving consideration. You ask whether you would have a conflict of interest, given your son -in -law's position with the Equitable Group. Discussion: As the Chief Clerk of Susquehanna County and as a Member of Susquehanna County's Retirement Board, 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 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. Myers, Jerry A., Chief Clerk, 95 -611 October 23, 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 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. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since you and your son -in -law are not in one of these delineated familial relationships, Section 3(a) of the Ethics Law would not prohibit you from participating in the selection of a firm to manage and administer the County retirement funds, conditioned upon the assumption that there is no other basis for a conflict under the Ethics Law. Baker, Opinion 89 -016; See also, Boyer, Advice 91 -511. 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. Specifically not addressed herein is the applicability of the County Code. Conclusion: As Chief Clerk of Susquehanna County and as a Member of Susquehanna County's Retirement Board, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict you from participating in the selection of a firm to manage and administer the County's retirement funds where your son -in -law is the local representative for one of the firms under consideration because your son -in -law is not a member of your immediate family as that term is defined under the Ethics Law. This advice is expressly conditioned upon the assumption that there is no other basis for a conflict of interest under the Ethics Law. 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 Myers, Jerry A., Chief Clerk, 95 -611 October 23, 1995 Page 4 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 receive• at the Commission within thirty (30) 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 thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel