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Home My WebLink About05-542 CessnaRichard F. Cessna Rainsburg Borough President 3360 Main Road Bedford, PA 15522 ADVICE OF COUNSEL May 4, 2005 05 -542 Re: Conflict; Public Official /Employee; Borough; Council President; Immediate Family; Great Nephew; Participating in Hiring of Great Nephew as Borough Solicitor. Dear Mr. Cessna: This responds to your letter of April 2, 2005, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would present any prohibition or restrictions upon a borough council president with regard to participating in the hiring of his great nephew as borough solicitor. Facts: As President of Borough Council for Rainsburg Borough ("Borough "), Bedford County, Pennsylvania, you seek an advisory from the State Ethics Commission based upon the following. You state that the Borough is in desperate need of a Solicitor. Your great nephew, who just graduated from law school, is starting his own law office in the Borough. You state, "Since he is just starting his fees are within our boro [sic] budget and also we would like to help get him started." (Cessna letter of April 2, 2005, paragraph 2). You ask whether the Borough may hire your great nephew as Borough Solicitor. 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 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. Cessna, 05 -542 May 4, 2005 Page 2 It is further initially noted that this advisory only addresses your prospective conduct. To the extent you have inquired as to the prospective conduct of other individual(s) who have not given you permission to do so, you are considered a third party without legal standing. As Borough Council President, you are a `` ublic official" subject to the provisions of the Public Official and Employee Ethics Act "Ethics Act "). 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. Section 1103(j) of the Ethics Act provides as follows: §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 interest shall abstain from voting and, prior to the vote being Cessna, 05 -542 May 4, 2005 Page 3 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). 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. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Pavlovic, Opinion 02 -005. In applying the above provisions of the Ethics Act to the facts that 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 a great nephew is not in a familial relationship delineated within the definition, Section 1103(a) of the Ethics Act would not prohibit you from participating in actions of Borough Council to hire your great nephew as Borough Solicitor. Baker, Opinion 89 -016. It is parenthetically noted that this Advice is limited to an application of the Ethics Act to the question presented. Since your great nephew is not a member of immediate family and the Ethics Act therefore does not apply, this Advice does not and cannot address your comment about wanting to get your great nephew started. (Cessna letter of April 2, 2005, paragraph 2). 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 is the applicability of the Borough Code. Conclusion: As President of Borough Council for Rainsburg Borough ( "Borough "), Bedford County, Pennsylvania, you are a public official subject to the Cessna, 05 -542 May 4, 2005 Page 4 provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Section 1103(a) of the Ethics Act would not restrict you from participating in actions of Borough Council to hire your great nephew as Borough Solicitor because your great nephew is not a member of your 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 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. Sincerely, Vincent J. Dopko Chief Counsel