HomeMy WebLinkAbout00-007 ConfidentialOPINION OF THE COMMISSION
Before: Louis W. Fryman, Vice Chair
Julius Uehlein
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
DATE DECIDED: September 20, 2000
DATE MAILED: October 5, 2000
Re: Conflict; Public Official /Employee; A; B; Tenant; Employment Opportunity.
00 -007
This Confidential Opinion is issued in response to your letter of August 28, 2000 in
which you requested a confidential advisory from the State Ethics Commission.
I. ISSUE:
Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
§1101 et seq., would present any prohibition or restrictions upon an A with regard to hiring
an individual as a B in his C office when the prospective employee rents an apartment from
the A.
II. FACTUAL BASIS FOR DETERMINATION:
As an A for the D, you seek a confidential advisory from the State Ethics
Commission. You currently have an opening in your C office for the position of B. You are
considering offering this position to an individual who rents an apartment from you. You
note that you are not related to this individual. You ask whether the Ethics Act would
prohibit you from hiring this individual given that she is your tenant.
III. DISCUSSION:
It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics
Act, 65 Pa.C.S. § §1107(10), (11), 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, this 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), (11). An advisory only affords a defense to the extent
the requestor has truthfully disclosed all of the material facts.
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October 5, 2000
Page 2
As an A for the D, you are a public official as that term is defined in the Ethics Act,
and hence you are subject to the provisions of that Act.
Section 1103(a) of the Ethics Act provides:
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 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.
65 Pa.C.S. §1102.
In addition, Sections 1103(b) and 1103(c) of the Ethics Act 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 anything of monetary value based upon the
understanding that the vote, official action, or judgment of the public official /employee
would be influenced thereby. Reference is made to these provisions of the law not to imply
that there has been or will be any transgression thereof but merely to provide a complete
response to the question presented.
Section 1103(j) of the Ethics Act provides as follows:
Section 1103. Restricted activities
(j) Voting conflict. —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
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October 5, 2000
Page 3
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.
65 Pa.C.S. §1103(j).
If a conflict exists, Section 1103(j) requires the public official /public employee to
abstain and to publicly disclose the abstention and reasons for same, both orally and by
filing a written memorandum to that effect with the person recording the minutes or
supervisor.
Having set forth the relevant provisions of the Ethics Act, we shall now address your
inquiry.
Pursuant to Section 1103(a) of the Ethics Act, it is a conflict of interest for a public
official /public employee to use 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. In order for a
violation of Section 1103(a) to be found by this Commission, each of the above elements
must be established by clear and convincing evidence. 65 Pa.C.S. §1108. However,
"intent" is not a requisite element for a violation of Section 1103(a) of the Ethics Act. See,
Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987). Thus, a violation
of Section 1103(a) of the Ethics Act may be found even if the public official /public
employee did not intend to violate the Act.
Under the facts which you have submitted, it is clear that your involvement in the
hiring of a B for your C office would constitute a use of the authority of your public position
as an A. The only remaining question is whether the hiring of your tenant would result in a
prohibited private pecuniary benefit.
The necessary conclusion is that the answer would depend upon the circumstances.
There is no one, simple answer which would apply in all cases. Certainly there would be
circumstances under which such a hiring would not present any conflict of interest. The
existence or nonexistence of a prohibited private pecuniary benefit would, in each
instance, depend upon the facts surrounding the hiring.
For example, a conflict could be found to exist as to the provision of a job to a
tenant who would otherwise lack the necessary means to pay the rent owed to the public
official. Under such a scenario, the public official's use of the authority of his public
position to provide the tenant with a government job would enhance the public official's
ability to collect the rent due him and to avoid possible costs for evicting and replacing the
tenant.
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At the other extreme, a conflict would probably not exist as to the hiring of a tenant
with independent means to pay the rent. Under such a scenario, absent any improper
understanding in contravention of Section(s) 1103(b)/1103(c), the Ethics Act would not
prohibit the public official's hiring of the tenant.
In between these two extremes there would doubtless be many "gray areas." While
we would not attempt to address in this Opinion every possible scenario which could arise,
we would generally caution that even when the hiring of a tenant would occur under
circumstances which would not result in a prohibited private pecuniary benefit, the public
official would have to remain diligent regarding subsequent actions as to the
employee /tenant which could present a conflict of interest under the circumstances in
existence at that time.
On a practical note, we would point out that the combination of the private
landlord /tenant business relationship and the public employer /employee relationship would
place the public official in a precarious position. Actions benefiting the tenant as an
employee could be characterized as inuring to the benefit of the public official as landlord.
Actions to the detriment of the tenant as an employee could be characterized as
retribution for any problems with the landlord /tenant relationship. Although a violation of
the Ethics Act would only be found if each of the requisite elements of such violation would
be established by clear and convincing evidence, consideration should be given to
foregoing such an arrangement due to the potential pitfalls.
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. Specifically not addressed herein is the applicability of the
E.
IV. CONCLUSION:
An A for the D is a "public official" subject to the provisions of the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. An A's involvement in the
hiring of his tenant as a B for his C office would constitute a use of the authority of his
public position as an A. The existence of a prohibited private pecuniary benefit, and
therefore a conflict of interest, would, in each instance, depend upon the facts surrounding
the hiring. Even when the hiring of a tenant would occur under circumstances which would
not present a conflict of interest, the A would have to remain diligent regarding subsequent
actions as to the employee /tenant which could present a conflict of interest under the
circumstances in existence at that time.
Pursuant to Section 1107(10), the person who acts in good faith on this Opinion
issued to him shall not be subject to criminal or civil penalties for so acting provided the
material facts are as stated in the request.
This letter is a public record and will be made available as such.
Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the
mailing date of this Opinion. The party requesting reconsideration must include a detailed
explanation of the reasons as to why reconsideration should be granted in conformity with
51 Pa. Code §21.29(b).
By the Commission,
Confidential Opinion, 00 -007
October 5, 2000
Page 5
Louis W. Fryman
Vice Chair