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HomeMy WebLinkAbout96-542 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, . PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 16, 1996 96 -542 Re: Conflict, Public Official, Immediate Family, Member, A of the General Assembly, Legislative Assistant position, Hiring, Immediate Family Member. This responds to your letter of March 19, 1996, 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 member of the A of the General Assembly regarding the hiring of a member of his /her immediate family for a part -time position as a Legislative Assistant. Facts: You request a confidential advisory on behalf of a Member of the A of the General Assembly. You state that the Member desires to hire a member of his /her immediate family as a Legislative Assistant. The Legislative Assistant position would be on a part -time basis, working up to 30 hours per week, at a rate of $6 per hour. The duties for this position would include providing research assistance and resolving constituent problems. The minimal educational requirement for the job would be a high school education and the necessary skills would include an ability to work with people. The Legislative Assistant would be selected by the Member. The specific questions you pose are as follows: 1. Does the Ethics Law prohibit a Member of the A of the General Assembly from employing a member of his /her immediate family as a Legislative Assistant in the Member's district office? 2. If such employment is permitted by the Ethics Law, are there any restrictions regarding the manner of selection of the successful applicant? Discussion: As a Member of the A of the General Assembly, he /she would be a public official as that term is defined under the Ethics Law, and hence is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Confidential Advice of Counsel, 96 -542 April 16, 1996 Page 2 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. 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 the Member desires to hire an immediate family member, Section 3(a) of the Ethics Law would prohibit the Member from hiring a member of his /her immediate family for the position of Legislative Assistant. Davis, Opinion 89- 012. Thus, if the Member were to hire a member of his /her immediate family as a Legislative Assistant, such action would be a use of the authority of office to obtain a private pecuniary benefit to a member of his /her immediate family in contravention of the Ethics Law. 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 Confidential Advice of Counsel, 96 -542 April 16, 1996 Page 3 involve an interpretation of the Ethics Law. Specifically not addressed is the Legislative Code of Conduct. Conclusion: As a Member of the A of the General Assembly, he /she is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would prohibit the Member from hiring a member of his /her 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. This letter is a public record and will be made available as such. 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 forma/ 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. ncerely, Vincent J. Dopko Chief Counsel