HomeMy WebLinkAbout00-575 CambestSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
May 4, 2000
John F. Cambest, Esquire
Dodaro, Kennedy & Cambest
1001 Ardmore Boulevard, Suite 100 00 -575
Pittsburgh, PA 15221 -5233
Re: Conflict; Public Official /Employee; Immediate Family; Member; Elizabeth
Borough Council; Grandson.
Dear Mr. Cambest:
This responds to your letters of March 29, 2000 and April 19, 2000, by which
you requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ")
presents any prohibition or restrictions upon a Borough Council Member with regard
to voting to hire his grandson as a Borough employee.
Facts: On March 28, 2000, the Elizabeth Borough Council ( "Borough ")
considered a motion to appoint the grandson of Councilperson Leonard Bailey to the
position of part -time road crew member. During the discussion on the motion, a
question was raised as to whether Mr. Bailey would be permitted to vote on the
motion since the appointment would be a direct pecuniary benefit to his grandson.
Given that the State Ethics Commission will not issue an advice if the events
concerning the request have already occurred, the Borough has not taken formal action
on the motion to appoint Mr. Bailey's grandson.
Discussion: It is initially noted that pursuant to Sections 1107(10) and (1 1) of
the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), advisories are issued to the requestor
based upon the facts which the requestor has submitted. In issuing the advisory based
upon the facts which the requestor has submitted, the Commission does not engage
in an independent investigation of the facts, nor does it speculate as to facts which
have not been submitted. It is the burden of the requestor to truthfully disclose all of
the material facts relevant to the inquiry. 65 Pa.C.S. §§1107(10), (1 1). An advisory
only affords a defense to the extent the requestor has truthfully disclosed all of the
material facts.
As Member for Elizabeth Borough Council, Leonard Bailey is a public official as
that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act "), and
hence Leonard Bailey is subject to the provisions of that law.
Section 1 103(a) of the Ethics Act provides:
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state_pa.us
Cambest, 00 -575
May 4, 2000
Page 2
Section 1103. Restricted activities.
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. §1103(a).
The following terms that pertain to Section 1103(a) are defined in the Ethics Act
as follows:
Section 1102. 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. The term 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.
65 Pa.C.S. §1102.
In applying the above provisions of the Ethics Act to the circumstances which
you have submitted, pursuant to Section 1103(a) of the Ethics Act, a public
official /public employee is prohibited from using the authority of public
office /employment or confidential information received by holding such a public
position for the private pecuniary benefit of the public official /public employee himself,
any member of his immediate family, or a business with which he or a member of his
immediate family is associated.
Since the term "immediate family" is defined to include a parent, spouse, child,
brother or sister and since grandson is not in a familial relationship delineated above,
Section 1103(a) of the Ethics Act would not prohibit Leonard Bailey from participating
in the hiring of his grandson. Baker, Opinion 89 -016.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act; the applicability of any other statute, code, ordinance, regulation or other
code of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act.
Cambest, 00 -575
May 4, 2000
Page 3
Conclusion: As a Member of Elizabeth Borough Council, Leonard Bailey is a
public official subject to the provisions of the Public Official and Employee Ethics Act
( "Ethics Act "), Act 93 of 1998, Chapter 11. Section 1103(a) of the Ethics Act would
not restrict Leonard Bailey from participating in the hiring of his grandson because his
grandson is not a member of his immediate family as that term is defined under the
Ethics Act.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Pursuant to Section 1107(11), an 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, provided 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 Pa. Code §13.2(h 1. 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,
4
Vincent. Do 10
Chief Counsel