HomeMy WebLinkAbout95-636 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
December 27, 1995
95 -636
Re: Conflict, Public Official, Immediate Family, County Row Office,
Son, Solicitor.
This responds to your letter of December 6, 1995, in which you
requested confidential advice from the State Ethics Commission.
Issue: You ask whether the Public Official and Employee Ethics Law
presents any restrictions upon a county row officer from appointing
a member of his immediate family to the position of solicitor for
that office.
Facts: You have been elected to the Office of A County C and will
take office on or about January 1, 1996. You wish to appoint your
son, B, to the position of Solicitor within the C's office. You
have enclosed a copy of your son's professional qualifications which
is incorporated herein by reference. You inquire as to whether your
appointment of B as Solicitor for the C's Office would be a
violation of the Ethics Law.
Discussion: As C for A County, you would be a public official as
that term is defined under the Ethics Law, and hence would be
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.
Confidential Advice of Counsel, 95 -636
December 27, 1995
Page 2
"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 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 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 B is in the
familial relationship delineated above, Section 3(a) of the Ethics
Law would prohibit you from appointing B to the position of
Solicitor within the C's Office. Davis, Opinion 89 -012. Thus, if
you were to appoint B, such action would be a use of the authority
of office to obtain a private pecuniary benefit to your son in
contravention of the Ethics Law. Furthermore, the appointment of
your son would not fall within either the class /subclass or the de
minimis exclusions to conflict. The action would not be de minimis
because you solely would select your son and hence it would not be
akin to a situation where a governmental body would hire the
immediate family member of a public official when the public
official would not cast the deciding vote to hire. Second, the
class /subclass exclusion would not apply because a class /subclass is
not involved as to the solicitor position for your county row
Confidential Advice of Counsel, 95 -636
December 27, 1995
Page 3
office. Accordingly, Section 3(a) of Act 9 of 1989 would prohibit
you from hiring your son to the compensated position of solicitor
for your county row office.
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 C of A County, you would be a public official
subject to the provisions of the Ethics Law. Section 3(a) of the
Ethics Law would prohibit you from appointing as Solicitor for the
C's Office B, who is a member of your immediate family as that term
is defined 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
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 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.
rely,
V recent J. `!opko
Chief Counsel