Loading...
HomeMy WebLinkAbout451 PhillipsMr. Jim Phillips 257 River Street Forty Fort, PA 18704 Re: 84 -162 -C near Mr. Phillips: The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation. The individual allegations, conclusions, and findings on which those conclusions are based are as follows: I. Allegation: That you, a Luzerne County Commissioner, voted to appoint your son to the post of part -time solicitor to the county planning and zoning commission, therehy violating Section 3(a) and Section 1 of the Ethics Act, 65 P.S. 403(a),and 401. A. Findings: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION December 16, 1985 Order No. 451 1. You have served as a Luzerne County Commissioner since January, 1984 and are subject to the provisions of the State Ethics Act. 2. On March 7, 1984, the county commissioners replaced their solicitor through the following actions: a. On your motion, seconded hy Commissioner Trinisewski, Solicitor Joseph R. Ferdinand was dismissed. h. On your motion, seconded hy Mr. Trinisewski, Attorney Rruce Phillips was hired as county solicitor at an annual salary of 512,000.00. 3. Rruce Phillips is your son and at the time of his appointment resided at 257 River Street, Forty Fort, Pennsylvania. a. You state that he resided at this address with you and shared the upkeep of the residence although he had his own entrance to an upstairs dwelling. During the summer of 1984 he moved to another residence. Mr. Jim Phillips December 16, 19R5 Page 2 4. There were no other candidates considered for this position. 5. There is no evidence that other applications were solicited. 6. The county has not established qualifications for the solicitor position other than requi ring that the person be a licensed attorney. 7. You state that you needed a solicitor who was loyal to you as well as one professionally competent. 8. There is no evidence that Attorney Ferdinand was ever reprimanded or notified that his performance was not adequate. B. Di scussion: 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). In accordance with this provision, no public official may use his public office or his vote as a public official to benefit a member of his "immediate family." This tern is defined in the Act as a spouse residing in the official's household, or a minor dependent child. Your son is not a member of your immediate family as that term is defined in the Ethics Act because he is not a minor dependent. This is so even though he resided with you and shared expenses for the upkeep of the dwelling. tinder these circumstances, we find no violation of Section 3(a) of the Ethics Act. C. Conclusion: You did not violate Section 3(a) of the Ethics Act when you voted on the hiring of your son as county solicitor. Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will be made available as a public document 15 days after service (defined as mailing) unless you file documentation with the Commission which justifies reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code 2.38. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge this Order, may violate this confidentiality by releasing, discussing or circulating this Order. Mr. Jim Phillips Page 3 Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). JJC /sfb Oecemher 16, 1985 the Co fission Herber . ,onner Ch ai That Section provides that: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 CONCURRING OPINION OF COMMISSIONERS LEON L. HALEY, G. SIEBER PANCOAST The following Concurring Opinion is respectfully filed by Commissioner Leon L. Haley in which Commissioner G. Sieber Pancoast joins. While we concur in the majority's finding that there was no technical violation of Section 3(a) of the State Ethics Act, we do helieve that your conduct created the appearance of a conflict of interest and, thus, we file this Opinion. The purpose of the State Ethics Act is clearly set forth in Section 1 of the Act. Section 1. Purpose. The Legislature hereby declares that puhlic office is a puhlic trust and that any effort to realize personal financial gain through puhlic 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 he assured that the financial interests of holders of or candidates for puhlic office present neither a conflict nor the appearance of a conflict with the puhlic trust. Because puhlic confidence in government can hest he sustained by assuring the people of the impartiality and honesty of puhlic officials, this act shall he liberally construed to promote complete disclosure. 65 P.S. 401. Clearly, the intent of the law as explicitly enunciated above, was to insure that the conduct of puhlic officials does not create a conflict or the appearance of a conflict of interest. The Commission has, thus, previously concluded that the provisions of Section 1 of the Ethics Act require a hroader interpretation and application than the strict limitations of Section 3(a). For example; in Leete, R2 -005, the Commission concluded that a county commissioner could not sit on a salary hoard and vote for the salary of her hrother as director of the county planning agency without creating the appearance of a conflict of interests with her puhlic trust. Such action was found to he contrary to the intent and spirit of the law. The Commission affirmed this finding in a suhsequent decision. In O'Reilly, 83 -012, the Commission rejected the argument that Section 1 of the Ethics Act must he read narrowly to exclude the possibility that abstention is not required unless the action involves a memher of the immediate family. The Commission noted that if the Legislature had intended that the general purpose of the Ethics Act was to be effected only as to actions of puhlic officials in relation to memhers of the official's "immediate family," the Legislature had the ability to express within the provisions of Section 1 the same limitations that they included in Section 3(a) of the Ethics Act in relation to the immediate family of the official. In so ruling, the Commission determined that abstention was required. The Commission also found that the puhlic official should not participate in a decision involving other applicants because by negative votes all applicants hut his son could have heen eliminated and the result would he the appointment of his son. More recently, the Commission has found that the actions of a township supervisor that operated to henefit his adult daughter, who was a township employee, similarily created the appearance of a conflict of interest with the puhlic,trust. See, Cumherledge, 216 -R. We can find no distinction hetween the aforecited cases and the circumstances present in the instant situation. You initiated the motion as county commissioner to terminate the county solicitor. You then moved to hire your son for this position because you needed a solicitor who was loyal to you. No other attorneys were ever considered for this position. Your son resided with you and shared your expenses. Tinder these circumstances, we helieve that your actions were a blatant violation of the puhlic trust. Were it not for the strict definitions of the term "immediate family" within which we must make our decision, we would have found that you violated the provisions of the law and recommended appropriate action as a result thereof. You have, in our opinion, advanced your own interests rather than the interests of puhlic which you were sworn to serve. Under these circumstances, while we do not believe that you violated the technical provisions of Section 3(a) of the Act, we do believe that you did create the appearance of a conflict of interests with the puhlic trust. We, therefore, dissent. JJC /sfh Ry djf c, r. Leon Haley Vice- Chairman G. Sieher Pancoast Commissioner d7 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 DISSENTING OPINION OF COMMISSIONERS CARL WEISS AND PAUL J. SMITH We dissent from the majority finding that your actions did not constitute a violation of the State Ethics Act and, thus, file this opinion. The State Ethics Act provides that: Section 3. Restricted activities. (a) No public official or public employee shall use his puhlic office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a memher of his immediate family, or a business with which he is associated. 65 P.S. 403(a). While we do believe, as the majority opinion sets forth, that your adult son is outside of the definition of "immediate family," 65 P.S. .$4112, we have determined that you used your public office in order to obtain a financial gain, other than compensation provided by law, for yourself. There is no doubt that as a county commissioner you are a public official and are, thus., subject to the requirements of the State Ethics Act. Steinman, R4 -D06. You have confirmed that your son in fact resided with you and shared the expenses of this residence. We believe that this nexus is enough for this Commission to rule that the benefit of appointing your son would, in part, inure to you. While it may be argued that this benefit or financial gain was indirect, we note that Section 3(a) of the Ethics Act does not mandate that the financial gain be direct. This position is supported by a long line of cases that have considered various conflicts of interests. Generally, the courts of this Commonwealth have been adamant in upholding the principle that wherever a puhlic official has a personal interest in a matter under consideration by the public hody of which they are a member, such official is disqualified from voting thereon. See Reckner, et. al., the German Township School District, 341 Pa. 369, A.2d , (1941). See also, Genkinger v. New Castle, 368 Pa. 547, 84 A.3O3, (195 ITT mcCreary v. Major, 343 Pa. 355, ?2 A.2d 636, (1941); Commonwealth v. Raudenhllsh, 2.49 Pa. 86 99 A. 555 (1915); Meixell v. Hillarritown Rorough, 37f1 Pa. 420, RR A.2d 594, (1952). Rased upon the foregoing, we believe that you violated Section 3(a) of the Ethics Act when you voted to appoint your son, with whom you shared certain expenses, to the position of county solicitor. JJC /sfh by Carl Weiss Commissioner Paul J. Smit Commissioner Airdt-