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HomeMy WebLinkAbout83-012 OReillyTimothy P. O'Reilly, Esquire McArdle, Caroselli, Spagnolli & Beachler 322 Boulevard of the Allies Pittsburgh, PA 15222 Dear Mr. O'Reilly: I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 August 19, 1983 OPINION OF THE COMMISSION 83 -012 RE: Glenn Johnston; Participation in Selection of Son as Township Employee You present an appeal from Advice of Counsel No. 83 -569 (incorporated herein by reference) and pose the question of whether that Advice is correct insofar as it requires abstention by a Township Commissioner on Township decisions as to the selection of a Township Commissioner's son as a Township Road Department employee. It is clear from your letter of July 12, 1983, in which you appeal from the Advice of Counsel noted above that you have no dispute with the fact that Glenn Johnston is a Township Supervisor and as such is a "public official" subject generally to the requirements of the Ethics Act. Further, you do not appear to dispute the facts as set forth in that Advice of Counsel upon which our response to your appeal and to your question is based. We emphasize the fact as presented, however, the Township of Elizabeth, hereinafter the Township, is in the process of selecting an employee for its Road Department and has narrowed the selection process down to two men: Glenn Johnston, Jr. and Robert Greenawald. Glenn Johnston, Jr. is the son of Township Commissioner Glenn Johnston. It should be noted that as stated in this Advice, Glenn Johnston, Jr. is not a dependent child of Commissioner Glenn Johnston nor does Glenn Johnston, Jr. reside in the home of Commissioner Glenn Johnston. Timothy P. O'Reilly, Esquire August 19, 1983 Page 2 III. Applicable Law: The law to be applied to this question is as follows: Section 3. Restricted Activities (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a), IV. Discussion: Section 2. Definitions "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Section 1. Purpose The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. Obviously, Commissioner Glenn Johnston is a public official who, as the Advice of Counsel indicates, is subject to the provisions of the Ethics Act. In your appeal, however, you dispute the conclusion of Counsel that under the Ethics Act, Commissioner Glenn Johnston should abstain from participating in making a motion, seconding a motion, or in any manner voting in favor of his son as the person to be selected for Township employment. Additionally, you question the Advice of Counsel insofar as it indicates that Commissioner Glenn Johnston should abstain from participating it this particular decision of the selection of this Township employee, given tree fact as noted above, that the selection process has already narrowed the Township's choice down to two individuals -- either Glenn Johnston, Jr. or another individual. Timothy P. O'Reilly, Esquire August 19, 1983 Page 3 In particular, you argue that the definition of "immediate family" in Section 3(a) being a limited definition as outlined in Section III above should not be susceptible to a "broader interpretation" in light of Section 1 of the Ethics Act. In other words, you argue that the Legislature by enacting legislation written with the specific term "immediate family" in mind has indicated that this is the only area in which the restrictions or prohibitions of the Ethics Act should be imposed and that all restrictions or prohibitions under the Ethics Act should relate only to those persons specifically itemized in the definition of "immediate family." Turning to your arguments and a review of the Advice of Counsel issued in this matter, we conclude that the Advice of Counsel should be affirmed. This Commission has previously concluded, as indicated in that Advice of Counsel, that while Section 2 of the Ethics Act does define "immediate family" as including a spouse residing in the person's household and minor dependent children, the Commission does not feel compelled to limit the question of abstention so narrowly particulary with relation to Section 1 of the Ethics Act which requires that even the appearance of a conflict of interest be avoided. See Leete, 82 -005. In that ruling the Commission concluded that a County Commissioner could not sit on a salary board and vote the salary of her brother as Director of the County planning agency without engaging in conduct which would appear to conflict with the public trust. You are correct that Section 1 of the Ethics Act does not contain any similar reference to "immediate family" as is contained in Section 3(a) of the Ethics Act. It is for this specific reason that we reject your contention that Section 1 of the Ethics Act must be read narrowly to exclude the possibility that abstention in the circumstances outlined above is not to be required. Specifically, if the Legislature had intended that the general "Purpose" of the Ethics Act was to be effected only as to actions of public officials in relation to members of the official's "immediate family ", we are confident that the Legislature had the ability to express, within the provisions of Section 1, siiilar limitations that they were capable of including in Section 3(a) of the Ethics Act in relation to the "immediate family" of the official. Thus, we affirm the Advice of Counsel insofar as it requires abstention in the circumstances outlined above. In addition, you also question whether the Advice of Counsel which under these particular circumstances required Commissioner Glenn Johnston to abstain in relation to any positive or negative vote he may cast vis -a -vis the selection of the other remaining candidate for employment -- Robert Greenawald -- is correct. Again, having reviewed the factual context in which this Advice was issued, we affirm this particular portion of the Advice as well. Specifically, it is clear that under these factual circumstances, a vote against Mr. Greenawald by Commissioner Glenn Johnston would effectively negate Timothy P. O'Reilly, Esquire August 19, 1983 Page 4 his possible employment, thus, leaving Commissioner Johnston's son as the only candidate remaining for selection by the Township. Having previously concluded that Glenn Johnston cannot directly vote for the appointment of his son, and even assuming that Commissioner Glenn Johnston abstains from the particular vote on the appointment of his son, it would be inconsistent to conclude that Commissioner Glenn Johnston can be in a position to deny employment to the only other applicant still being considered and, thus, virtually insure the Township's selection of his son. Likewise, it is not consistent with good public policy nor common sense to allow Commissioner Glenn Johnston to place himself in a position of effectively stymieing the decision of the Township as to the selection of this employee by his ability to vote negatively as to the appointment of the remaining candidate, Robert Greenawald. If Commissioner Glenn Johnston were capable of placing himself in such a position of voting for or against the only remaining candidate other than his son, he has effectively placed himself in a position of leverage in the selection process in general. By stating, implying, or acting in a manner that would be clearly indicative to the other Commissioners that unless they vote for his son (even if Commissioner Johnston himself abstains), Commissioner Johnston will effectively, through his ability to vote against the other possible candidate, stymie the selection process, in general and he will have gained indirectly what we have already stated he may not gain directly -- the appointment of his son as an employee of the Township. You state in your appeal that this interpretation effectively "freezes" these two candidates as the only candidates that can ever be considered by the Township. Quite the contrary. In the circumstances that you present and as were presented to us by the original request for Advice, the facts in this situation are that the Township has decided to.consider° only two candidates. We make no representation that the Township is incapable of re- soliciting applications for this post y We make no representation that the only two people who are eligible to apply for this post are the two individuals cited in the factual portion of this opinion or the original Advice of Counsel. We can only deal with the facts as they are presented and to presume that this effectively negates any options that may be available to the Township is in error. V. Conclusion: The Advice of Counsel as previously issued is affirmed. That Advice indicates and we hereby agree, that in order to comply with the provisions of Section 1 of the Ethics Act and to avoid any appearance of a conflict of interest with tree public trust as required by that Section, Commissioner Glenn Johnston should abstain from participation in any manner Timothy P. O'Reilly, Esquire August 19, 1983 Page 5 in the selection process of his son as a Township employee and under the circumstances presented to this Commission, such abstention includes not participating in discussions, motions, voting, etc., with relation to the appointment of Glenn Johnston, Jr. or the only other candidate apparently to be considered at this time for this post, Robert Greenawald. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. SSC /rdp By the Commission,