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HomeMy WebLinkAbout00-575 BaileySTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL May 4, 2000 John F. Cambest, Esquire Dodaro, Kennedy & Cambest 1001 Ardmore Boulevard, Suite 100 00 575 Pittsburgh, PA 15221 -5233 Re: Conflict; Public Official /Employee; Immediate Family; Member; Elizabeth Borough Council; Grandson. Dear Mr. Cambest: This responds to your letters of March 29, 2000 and April 19, 2000, 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 Borough Council Member with regard to voting to hire his grandson as a Borough employee. Facts: On March 28, 2000, the Elizabeth Borough Council ( "Borough ") considered a motion to appoint the grandson of Councilperson Leonard Bailey to the position of part-time road crew member. During the discussion on the motion, a question was raised as to whether Mr. Bailey would be permitted to vote on the motion since the appointment would be a direct pecuniary benefit to his grandson. Given that the State Ethics Commission will not issue an advice if the events concerning the request have already occurred, the Borough has not taken formal action on the motion to appoint Mr. Bailey's grandson. Discussion: It is initially noted that pursuant to Sections 1107(10) and (1 1) 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 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. As Member for Elizabeth Borough Council, Leonard Bailey is a public official as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act "), and hence Leonard Bailey is subject to the provisions of that law. Section 1 103(a) of the Ethics Act provides: FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics'state.pa.us Cambest, 00 -575 May 4, 2000 Page 2 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 that pertain to Section 1103(a) 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. "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. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since grandson is not in a familial relationship delineated above, Section 1103(a) of the Ethics Act would not prohibit Leonard Bailey from participating in the hiring of his grandson. Baker, Opinion 89 -016. 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. Cambest, 00 -575 May 4, 2000 Page 3 Conclusion: As a Member of Elizabeth Borough Council, Leonard Bailey is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Section 1103(a) of the Ethics Act would not restrict Leonard Bailey from participating in the hiring of his grandson because his grandson is not a member of his immediate family as that term is defined under the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 I. 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. cerely, Vincen4 J. Do Io Chief Counsel