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HomeMy WebLinkAbout90-010 MaholickDear Mr. Maholick: 1990. I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair Dennis C. Harrington James M. Howley Daneen E. Reese DATE DECIDED: Mav 18, 1990 DATE MAILED: May 29. 1990 Mr. John Maholick 90 -010 Councilman 619 Boulevard Avenue Dickson City, PA 18519 Re; Conflict, Public Official, City, Councilmember, Immediate Family, Daughter, Transportation Company, Department Store, Business with Which he is Associated, Voting, Bill. This Opinion is issued in response to your request of March 15, Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a city councilmember regarding voting on the payment of bills to either a county transportation system or department store when each entity employs a daughter of the councilmember. II. Factual Basis for Determination: After referencing that your solicitor has employed the council president's wife as a secretary in his law office, you express your opinion that the president cannot vote to pay the solicitor's bill every month. The solicitor has now advised you that you cannot vote to pay bills to the Lackawanna County Transportation System because your daughter is employed there as a receptionist. In addition, you have been advised that you cannot vote to pay the bill from Sugarman's Department Store because your other daughter is employed by that business. You conclude by requesting an opinion on the above three matters. Mr. John Maholick Page 2 III. Discussion: As a Councilmember of Dickson City, you are a public official as that term is defined under the Public Official and Employee Ethics Law. 65 P.S. 402; 51 Pa. Code 1.1. As such, your conduct is subject to the provisions of the Ethics 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 under the Ethics Law: 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. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. i Mr. John Maholick Page 3 Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept ahy thing 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. Preliminarily, although you have posed three questions to this Commission, we may only address the second and third questions which relate to your conduct but not the first question which relates to the conduct of some other public official. The authority of the Ethics Commission to issue an opinion /advice regarding a person's duties under the Ethics Law is limited by statute, to those persons who request it relative to their duties, or to the appointing authority of such persons or the employer of such persons at the request of the appointing authority or employer. Since your first inquiry does not relate to your own conduct, that inquiry is in the nature of a third party request which cannot be addressed. Turning to the second and third inquiries which you pose, we note that your daughters are within the definition of the term "immediate family." Further, Section 3(a) of the Ethics Law quoted above restricts the actions of a public official relative to the use of authority of public office for a private pecuniary benefit as to the public official, a member of his immediate family or business with which he or a member of his immediate family is associated. Since one of your daughters is employed by the Lackawanna County Transportation System and the other one is employed by Sugarman's Department Store, clearly each entity is a business with which each of your daughters is associated. Therefore, under Section 3(a) of the Ethics Law, you could not vote or participate regarding the award of any contract as to either of these two entities nor could you participate or vote if either of these two entities had a matter before City Council. Section 3(j) of the Ethics Law would require you to publicly abstain as well as file a written memorandum to that effect with the secretary recording the minutes. We do not believe that a conflict would exist as to your voting to pay any routine uncontested bills submitted by either of these entities provided you did not vote or participate as to the award of the original contract. It is assumed that the bills in question involve non - discretionary payments which are prefixed in nature-sand are not disputed. Under these circumstances, Section 3(a) of the Ethics Law would not restrict your voting. There is an exclusion to the Mr. John Maholick Page 4 definition of conflict concerning actions which have a de minimus economic impact. The above would fall into that exclusion. See also, Krushinski, Order 168; Stewart, Opinion 79 -070. 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 Act has not been considered in that they do not involve an interpretation of the Ethics Law. IV. Conclusion: A city councilmember is a public official subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would prohibit a councilmember from voting on the award of a contract or matters involving a business with which a member of his immediate family is associated, such voting would not be prohibited regarding the approval of bills from those businesses which are prefixed and routine in nature and are not disputed or involve any discretionary action by council. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 on the advice given. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By th= Commission elena G. Hughes, hair