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Home My WebLink About97-572 McMurdyKen L. McMurdy Supervisor, Worth Township 815 West Park Road Slippery Rock, PA 16057 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 27, 1997 97 -572 Re: Conflict, Public Official, Township, Supervisor, Immediate Family, Son, Township Employee. Dear Mr. McMurdy: This responds to your undated letter received April 21 and your letter dated April 23, 1997, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon a Township Supervisor with regard to hiring his son as a Township employee. Facts: As a Supervisor for Worth Township, you initially submitted a letter requesting an advisory regarding the hiring of your son as a part-time Township employee. You stated that you had spoken to your State Association and were told that the hiring of a relative was not prohibited as long as you abstained from voting and setting wages. In your second letter, you indicated that based upon your discussions with another Supervisor regarding this matter, you dismissed your son and he is no longer employed by the Township. Nevertheless, you continue to seek information on this issue. Discussion: It is initially noted that your request for advice may only be addressed with regard to prospective conduct. A reading of Sections 7(10) and 7(1 1) of the Ethics Law makes it clear that an opinion or advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion or advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. Any past actions as to the hiring of your son may not be addressed in the context of an advisory since they are past conduct. However, it would appear from your second McMurdv, 97 -572 May 27, 1997 Page 2 letter that you are continuing to seek guidance on this issue as to your potential future conduct, and so to that extent, your request shall be addressed. As a Supervisor for Worth Township, 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 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. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since your son is in the familial relationship delineated above, Section 3(a) of the Ethics Law would prohibit you from participating in the hiring of your son to work for the Township or in the setting of his wages. Davis, Opinion 89- 012. Participation in such actions would be a use of the authority of office for a private pecuniary benefit for your son, in contravention of the Ethics Law. Section 3(j) of the Ethics Law provides as follows: McMurdy, 97 -572 May 27, 1997 Page 3 Section 3. Restricted activities (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest, as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. In each instance of a conflict of interest, such as in matters involving the hiring or setting of wages for your son, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. 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 Second Class Township Code. Conclusion: As a Supervisor of Worth Township, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would prohibit you from participating in the hiring of your son to work for the Township. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) set forth above. 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. McMurdy, 97 -572 May 27, 1997 Page 4 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 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. cerely, ncent J Dop o Chief Counsel