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HomeMy WebLinkAbout02-004 ConfidentialOPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael J. Healey DATE DECIDED: May 2, 2002 DATE MAILED: May 16, 2002 02 -004 Re: Conflict; Public Official /Employee; Public Official A; Political Subdivision B; Use of Authority of Office; Hiring; Immediate Family; Immediate Family Member C; Director D. This Opinion is issued in response to your request for a confidential advisory received January 8, 2002. I. ISSUE: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., presents any prohibition or restrictions upon Public Official A of Political Subdivision B with regard to the hiring of Public Official As Immediate Family Member C to serve as Director D for Political Subdivision B. II. FACTUAL BASIS FOR DETERMINATION: As Public Official A of Political Subdivision B, you seek a confidential advisory from this Commission. The questions which you pose pertain to the potential hiring of a member of your immediate family, specifically, your Immediate Family Member C, [name],as Director D for Political Subdivision B. It is noted that your letter of inquiry refers to the public position in question using two titles: Director D and Director E. For purposes of consistency, this Opinion shall refer to the position using the title which appears most frequently in your inquiry, Director D. The position of Director D is a position that you established at the beginning of your F as Public Official A of Political Subdivision B. You state that you established the position in Confidential Opinion 02 -004 May 16, 2002 Page 2 order to consolidate the G and H initiatives of Political Subdivision B under the leadership of a single individual. Director D is not an I post. However, the position carries the status of Deputy Director J. The position of Director D was previously held by [name). [Name] currently serves as Director K for Political Subdivision B. As Director K, name is in the process of selecting an individual for recommendation as the new Director D for Political Subdivision B. [ Name] has informed you that your Immediate Family Member C is one of the candidates for the position. You state that you have had no involvement in [ name]'s decision - making process as to a new Director D. Although you assert that "this decision resides completely with [Director K]" (Advisory Request Letter of January 7, 2002, at 2), you acknowledge that pursuant to Charter L, the appointment of Director D cannot be made without your written authorization. Your Immediate Family Member C is already an employee of Political Subdivision B. Specifically, your Immediate Family Member C currently serves as Director of "M," an N Program. As Director of M, your Immediate Family Member C is paid a salary of approximately [amount]. The salary for the Director D has been approximately [amount] during [name]'s tenure in the position. You state that there is no question as to the qualifications of your Immediate Family Member C for the position of Director D for Political Subdivision B. You have posed two questions to this Commission. First, you request an opinion as to whether the appointment of your Immediate Family Member C to the position of Director D for Political Subdivision B, upon recommendation of Director K for Political Subdivision B and your approbation as Public Official A, consistent with the requirements of the current Charter L, would constitute a violation of the Ethics Act. You further inquire as to whether the Ethics Act would be transgressed as to the appointment of your Immediate Family Member C to the position of Director D for Political Subdivision B if you would delegate the full authority that you have as Public Official A with respect to the appointment to Director K or another I member. By letter dated April 15, 2002, you were notified of the date, time and location of the executive meeting at which your request would be considered. 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. Given that your inquiry is limited to the above two specific questions that you have posed, this Opinion shall be limited to addressing those questions. However, in providing a thorough response to your questions, certain provisions of Charter L and the Ethics Act must be considered. It is administratively noted that the current Charter L provides, inter alia, as follows: Confidential Opinion 02 -004 May 16, 2002 Page 3 With regard to the members of Public Official A's I and their appointment: [quotes]. [cites] With regard to the duties of the Director K and appointments made with the involvement of the Director K: Director K serves at the pleasure of Public Official A. Charter L, §§ [cites]. Director K supervises the 0 departments of Political Subdivision B. Charter L, §_[cite]. The supervisory powers of Director K are set forth as follows: [quote]. Charter L, § [cite]. Director K has the power to appoint, with the approval of Public Official A, the individuals who are to head the departments placed under Director K's supervision. Id.; Charter L, § [cite]. The compensation of department heads is fixed by Charter L at § [cite]. Director K also has the power to appoint and fix the compensation of deputies, again with the approval of Public Official A: [quote]. Charter L, § [cite]. With regard to the authority of a deputy: [quote]. Charter L, § [cite]. Upon review, there does not appear to be any provision in Charter L specifying a mechanism for delegation of your authority in the event of a conflict. The following points may be gleaned from the above cited provisions of Charter L: (1) Besides Public Official A, the I consists of four individuals including Director K, Director P, the Q, and the R. All but the Q are appointed exclusively by Public Official A. The Q is appointed by Public Official A with the advice and consent of a majority of the members of Council S. (2) Director K is Public Official As personal assistant and is in charge of the 0 departments of Political Subdivision B. (3) With the approval of Public Official A, Director K appoints the heads of all departments in Director K's charge. (4) Director K also has the power to appoint and fix the compensation of deputies, with the approval of Public Official A. (5) Deputies have the right to exercise /perform most of the powers and duties of their Confidential Opinion 02 -004 May 16, 2002 Page 4 department heads /officers, either in the absence of the department heads /officers or as the department heads /officers prescribe. When there is a vacancy in the office of a department head, a deputy authorized to do so may exercise the powers of that office, pending the appointment of a new department head. From the above, it is clear that Director K and the other I members to whom you are considering delegating your approval authority as to the appointment in question are your subordinates. Further, if appointed Director D for Political Subdivision B, your Immediate Family Member C in the role as Deputy Director J could act in the stead of Director K - -an I member and your personal assistant. Having reviewed the above pertinent provisions of Charter L, the pertinent provisions of the Ethics Act shall now be set forth. As Public Official A of Political Subdivision B, you are a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (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 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(a), (j). The following terms pertaining to conflict of interest are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public Confidential Opinion 02 -004 May 16, 2002 Page 5 65 Pa.C.S. § 1103(f). 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. sister. "Immediate family." A parent, spouse, child, brother or 65 Pa.C.S. § 1102. 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. In each instance of a conflict, Section 1103(j) requires the public official /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. Section 1103(f) of the Ethics Act provides as follows: § 1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Confidential Opinion 02 -004 May 16, 2002 Page 6 The term "contract" is defined in the Ethics Act as follows: § 1102. Definitions "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. § 1102. Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(f) of the Ethics Act also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. In applying the above provisions of the Ethics Act to the instant matter, the two questions that you have posed shall be addressed seriatim. Your first question is whether the appointment of your Immediate Family Member C to the position of Director D for Political Subdivision B, upon recommendation of Director K and your approbation as Public Official A, would constitute a violation of the Ethics Act. In response to your first question, you are advised that your approbation as Public Official A of the appointment of your Immediate Family Member C to the position of Director D for Political Subdivision B, upon recommendation of Director K, would constitute a use of the authority of your public office for the private pecuniary benefit of a member of your immediate family and would therefore transgress Section 1103(a) of the Ethics Act. Cf., Baker, Opinion 89 -016 at 3. See, Legislative Journal of House, 1989 Session, No. 14 at 247 -248. The use of authority of office encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order 809. Per the submitted facts and the above cited sections of Charter L, the appointment of Director D cannot be made without your written authorization. The authority of your office is defined to include approval authority as to the appointment. The use of that authority of office to approve the appointment of your Immediate Confidential Opinion 02 -004 May 16, 2002 Page 7 Family Member C would result in a private pecuniary benefit to your Immediate Family Member C consisting of the salary and benefits incident to the position. Thus, all of the elements for a conflict of interest under Section 1103(a) of the Ethics Act would be established. Given the private pecuniary interest involved, you would be prohibited from participating in the matter of the appointment of your Immediate Family Member C. Snyder v. State Ethics Commission, 686 A.2d 843 (Pa. Cmwlth. 1996), alloc. den., 0029 M.D. Allocatur Docket 1997 (Pa. December 22, 1997). See also, Holvey, Orders 1039, 1039 -2. Your second question is whether the Ethics Act would be transgressed as to the appointment of your Immediate Family Member C to the position of Director D for Political Subdivision B if you would delegate the full authority that you have as Public Official A with respect to the appointment to Director K or another I member. In response to your second question, you are advised that if you would delegate to Director K or another I member the full authority that you have as Public Official Awith respect to the appointment of your Immediate Family Member C to the position of Director D for Political Subdivision B, the Ethics Act would nevertheless be transgressed as the result of such appointment. Pursuant to Section 1103(a), where there is no pre- existing mechanism in place specifying how and by whom a public official's authority is to be exercised in the event of a conflict, the public official's delegation of such authority to a subordinate is itself a use of authority of office. Cf., Edwards, Opinion 91 -003 at 6. In this case, there is no pre- existing mechanism for delegation in the event of a conflict. In this case, Director K and other I members are your subordinates. Therefore, in selecting one of your subordinates to choose the successful applicant, you would be choosing the chooser. We point out the above not to suggest that there would be any improper influence exerted as to this appointment, but merely to explain why the delegation of your approval authority to one of your subordinates would fail to avoid a conflict of interest. Having noted the above under Section 1103(a), we find that the proposed appointment of your Immediate Family Member C to the position of Director D for Political Subdivision B would also result in the transgression of Section 1103(f) of the Ethics Act. The appointment of your Immediate Family Member C as the new Director D for Political Subdivision B would involve contracting that would be subject to Section 1103(f) of the Ethics Act. Political Subdivision B and your Immediate Family Member C would be agreeing /arranging for the acquisition by Political Subdivision B of your Immediate Family Member C's services. The contract would obviously be valued at $500 or more. Therefore, the restrictions of Section 1103(f) as set forth above would apply. Section 1103(f) would require that you not have any supervisory or overall responsibility as to the implementation or administration of your Immediate Family Member C's contract with Political Subdivision B. However, it is clear from the above -cited provisions of Charter L that you would inherently have such supervisory or overall responsibility as to the Director D. The Director D is high within your chain of command, reporting directly to Director K. Director K reports to you and is your personal assistant and a member of your I. Additionally, the Director D is the Deputy Director J. As Deputy, the appointed individual will have the authority to exercise /perform most of the powers and duties of Director K, either in the absence of Director K or as prescribed by Director K. Confidential Opinion 02 -004 May 16, 2002 Page 8 Given the above, there is no question that you as Public Official A would have supervisory or overall responsibility as to your Immediate Family Member C as Director D, which arrangement would be prohibited by Section 1103(f) of the Ethics Act. Thus, in response to the questions that you have posed, you are advised that: (1) you would be prohibited under the Ethics Act from approving the appointment of your Immediate Family Member C to the position of Director D for Political Subdivision B, upon recommendation of Director K; and (2) if you would delegate to Director K or another I member the full authority that you have as Public Official A with respect to the appointment of your Immediate Family Member C to the position of Director D for Political Subdivision B, the Ethics Act would nevertheless be transgressed as the result of such appointment. The propriety of the proposed conduct has only been addressed under the Ethics Act. IV. CONCLUSION: The Public Official A of a political subdivision 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. Pursuant to Section 1103(a) of the Ethics Act, a Public Official A would be prohibited from approving the appointment of a member of his immediate family to a position with the political subdivision, upon recommendation of another public official of the political subdivision. Where there is no pre - existing conflict mechanism in place specifying how and by whom the Public Official As authority is to be exercised as to the appointment of the Public Official As immediate family member, the Public Official As delegation of such authority to a subordinate is itself a use of authority of office in contravention of Section 1103(a) of the Ethics Act. The appointment of the Public Official As immediate family member to a position with the political subdivision would also result in the transgression of Section 1103(f) of the Ethics Act where the Public Official A would inherently have supervisory or overall responsibility as to the individual in such position. The propriety of the proposed conduct has only been addressed under the Ethics Act. 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, John J. Bolger Vice Chair Chair Louis W. Fryman did not participate in this matter.