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Home My WebLink About23-521-CL ConfidentialPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL May 12, 2023 23-521-CL This responds to your letter dated April 28, 2023, by which you requested clarification of Confidential Advice 23-521 as to the issue presented below: Issue: Whether a conflict of interest under Section 1103(a) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1103(a), would be created if the spouse of an individual serving as the [Position 1] of a [Political Subdivision] would be employed by the [Political Subdivision]: (1) as a [Position 2], in which capacity the individual's spouse would report directly to a [Type of Position] other than the individual; or (2) in any capacity. Brief Answer: Section 1103(a) of the Ethics Act would not prohibit the [Political Subdivision] from hiring the individual's spouse in any particular capacity. However, if the [Political Subdivision] would hire the individual's spouse, the individual, as the [Position 1] of the [Political Subdivision], generally would have a conflict of interest in matters pertaining to his spouse's employment with the [Political Subdivision]. In each instance of a conflict of interest, the individual would be required to abstain from participation. Unless the individual's spouse would be employed in a capacity in which the individual would not have any responsibility for evaluating his spouse, making recommendations or taking action as to personnel matters involving his spouse (raises, promotions, disciplinary actions, etc.), or otherwise supervising his spouse, it would appear to be impossible, as a practical matter, for the individual's spouse to be employed with the [Political Subdivision] without the individual running afoul of Section 1103(a) of the Ethics Act. (CONFIDENTIAL — NOT TO BE DISSEMINATED TO THE PUBLIC) Confidential Advice, 23-521-CL May 12, 2023 Page 2 Facts: By letters dated March 6, 2023, and March 21, 2023, you initially requested a confidential advisory from the Commission on behalf of [Individual 1], who is the [Position 1] of the [Political Subdivision]. In response to your initial advisory request, Confidential Advice 23-521 was issued to you on April 20, 2023, which Advice is incorporated herein by reference. By letter dated April 28, 2023, you requested clarification as to the following issues: (1) Whether a conflict of interest would be created if [Individual 1's] spouse, [Individual 2], would be employed by the [Political Subdivision] as a [Position 2], in which capacity [Individual 2] would report directly to a [Type of Position] other than [Individual 1]; and (2) Whether a conflict of interest would be created if [Individual 2] would be employed by the [Political Subdivision] in any capacity. Discussion/Conclusion: 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. In that Confidential Advice 23-521 is incorporated herein by reference, the submitted facts and the quoted provisions of the Ethics Act set forth in the Advice shall not be repeated herein. As noted in pertinentpart in Confidential Advice 23-521, as the [Position 1 ] of the [Political Subdivision], [Individual 1] is a public official/public employee subject to the provisions of the Ethics Act. [Individual 1's] spouse, [Individual 2], is a member of [Individual 1's] "immediate family" as that term is defined in the Ethics Act. As the [Position 1], [Individual 1] generally would have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact him or his spouse. With respect to your request for clarification as to the two issues set forth above, you are advised as follows. Section 1103(a) of the Ethics Act would not prohibit the [Political Subdivision] from hiring [Individual 1's] spouse in any particular capacity. However, if the [Political Subdivision] would hire [Individual 1's] spouse, [Individual 1], as the [Position 1], generally would have a conflict of interest in matters pertaining to his spouse's employment with the [Political Subdivision]. In each instance of a conflict of interest, [Individual 1 ] would be required to abstain from participation. (CONFIDENTIAL — NOT TO BE DISSEMINATED TO THE PUBLIC) Confidential Advice, 23-521-CL May 12, 2023 Page 3 Unless [Individual 1's] spouse would be employed in a capacity in which [Individual I] would not have any responsibility for evaluating his spouse, making recommendations or taking action as to personnel matters involving his spouse (raises, promotions, disciplinary actions, etc.), or otherwise supervising his spouse, it would appear to be impossible, as a practical matter, for [Individual 1's] spouse to be employed with the [Political Subdivision] without [Individual 1 ] running afoul of Section 1103(a) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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. Respectfully, 4x�l�a' Martin W. Harter Acting Chief Counsel (CONFIDENTIAL — NOT TO BE DISSEMINATED TO THE PUBLIC)