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HomeMy WebLinkAbout97-530 MazakKenneth Mazak 933 Mary Street Throop, PA 18512 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 24, 1997 97 -530 Re: Conflict, Public Official, Immediate Family, Borough, Council Member, Hiring, Cousin's Spouse. Dear Mr. Mazak: This responds to your letter of January 21, 1997 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon a Borough Council Member with regard to voting to hire Borough employees where one of the prospective employees is the Council Member's cousin's spouse. Facts: You currently serve as a Member of the Throop Borough Council. Borough Council will soon be hiring one or two new employees and, as a Council Member, you will be involved in the selection process. One of the candidates for employment is your cousin's husband and you inquire as to whether you would be permitted to participate in the vote. Discussion: As a Member of Throop Borough Council, 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: Mazak, 97 -530 February 24, 1997 Page 2 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. "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 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 a cousin's spouse is not one of the familial relationships delineated above, Section 3(a) of the Ethics Law would not prohibit you from participating in the hiring of your cousin's spouse. Baker, Opinion 89 -016. 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 Borough Code. Conclusion: As a Member of Throop Borough Council, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict you as a Borough Council Member from participating in the hiring of your cousin's spouse, who is not a member of your immediate family as that term is defined 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 Mazak, 97 -530 February 24, 1997 Page 3 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 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 Paced §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. i i incerely, ncen J. Dopko Chief Counsel