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HomeMy WebLinkAbout01-542 CorridoniKelly McDivitt Corridoni 829 Salt Street Saltsburg, PA 15681 ADVICE OF COUNSEL April 19, 2001 01 -542 Re: Conflict; Public Official /Employee; County Coroner; Hiring Spouse as Secretary /Administrative Assistant. Dear Ms. Corridoni: This responds to your letter of March 20, 2001, 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 county coroner with regard to hiring his /her spouse as secretary /administrative assistant. Facts: You are a candidate for the position of Coroner of Indiana County. You ask for guidance as to the following questions. 1. Whether the county coroner would be permitted to hire his /her spouse as a secretary or an administrative aide; 2. If the answer to the first question is in the affirmative, whether such conduct would be legal. Further, you ask whether there is a procedure for doing so; 3. Whether the county coroner would be permitted to serve as his /her immediate supervisor directly responsible for the spouse's evaluation, raises and /or promotions; 4. Whether the contract to hire a spouse as a secretary or an administrative aide must come before the county board of commissioners and /or its legal counsel before, during or after such contract would be awarded; and 5. Whether any recourse would be available to a citizen if a county coroner were to disregard any or all ethical mandates in hiring his /her spouse as a secretary or an administrative assistant. Discussion: It is initially noted that pursuant to Sections 1107(10) and (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, 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 Corridoni, 01 -542 April 19, 2001 Page 2 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. If you would win the election for the osition of Coroner for Indiana County, you would be a public official as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act "), and hence you would be subject to the provisions of that law. Section 1103(a) of the Ethics Act provides: $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: $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. Your spouse is a member of your immediate family. Assuming you would win the election for County Coroner, Section 1103(a) of the Ethics Act would prohibit you from hiring your spouse as your secretary /administrative assistant because you would be using the authority of your office as County Coroner for Corridoni, 01 -542 April 19, 2001 Page 3 a private pecuniary benefit of an immediate family member. See, Holvey, Order 1039 (wherein the Commission held, inter alia, that a director of a county "vo- tech" school violated Section 3(a) of the Ethics Law when he hired his spouse to teach adult courses at the vo -tech. The Order was appealed to the Commonwealth Court of Pennsylvania, which affirmed the Commission's Order with regard to the Section 3(a) violation, but reversed the Order with regard to the imposition of treble damages and remanded the case to the Commission for the imposition of the appropriate penalty. Holvey v. State Ethics Commission, No 815 C.D. 1997 (Pa. Commw. 1997). As to the Commission's holding on remand, See, 1998 Decisions, Order 1039 -2. Holvey subsequently appealed Order No. 1039 -2 to the Commonwealth Court of Pennsylvania which affirmed that order.) In that you are not permitted as a public official to hire your spouse, questions 2 through 4 involving other questions relating to the hiring obviously need not be discussed. As to your last question, if you would hire your spouse in contravention of Section 1103(a) of the Ethics Act, you would be subject to the following penalties associated with that Section. $ 1109. Penalties. (a) Restricted activities violation. Any person who violates the provisions of section 1103(a), (b) and (c) (relating to restricted activities) commits a felony and shall, upon conviction, be sentenced to pay a fine of not more than $10,000 or to imprisonment for not more than five years, or both. (c) Treble damages. Any person who obtains financial gain from violating any provision of this chapter, in addition to any other penalty provided by law, shall pay a sum of money equal to three times the amount of the financial gain resulting from such violation into the State Treasury or the treasury of the political subdivision. Treble damages shall not be assessed against a person who acted in good faith reliance on the advice of legal counsel. 65 Pa. C. S. § 1109(a), (c). 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. Specifically not addressed herein is applicability of the County Code. Conclusion: Assuming you would win the election for Coroner of Indiana County, you would be a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Your spouse is a member of your immediate family. Section 1103(a) of the Ethics Act would prohibit you from hiring your spouse as your secretary /administrative assistant because you would be using the authority of your office as County Coroner for a private pecuniary benefit of an immediate family member. If you would transgress Section 1103(a) of the Ethics Act, you would be subject to the penalties as set forth in Section 1109 (a) and (c) of that Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Corridoni, 01 -542 April 19, 2001 Page 4 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). 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. Sincerely, Vincent J. Dopko Chief Counsel