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HomeMy WebLinkAbout08-529 SHADLEHonorable Donna Shadle, Mayor The Borough of Littlestown 46 East King Street Littlestown, PA 17340 Dear Mayor Shadle: ADVICE OF COUNSEL March 26, 2008 08 -529 This responds to your letter dated February 19, 2008, received February 25, 2008, by which you requested advice from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would impose any prohibitions or restrictions upon a borough mayor, whose son -in -law is currently employed as sergeant of the borough police department and could eventually be appointed borough chief of police, with regard to the performance of her mayoral duties. Facts: As Mayor of the Borough of Littlestown ( "Borough "), you have requested an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. Your current term of office will end in 2010. You state that you are considering running for re- election in 2010. Your son -in -law is currently employed as Sergeant of the Borough Police Department. You state that by the time of the 2010 election, your son -in -law could be promoted to the position of Borough Chief of Police ( "Police Chief ") due to the retirement of the current Chief of Police. You note that as Borough Mayor, you are the direct supervisor of the Borough Chief of Police. Based upon the above submitted facts, you ask whether the Ethics Act would prohibit you from pursuing re- election as Borough Mayor in 2010. 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 Shadle, 08 -529 March 26, 2008 Page 2 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. Act. As Borough Mayor, you are a public official subject to the provisions of the Ethics 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 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 Shadle, 08 -529 March 26, 2008 Page 3 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. 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. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official /public 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. 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. With regard to your specific inquiry, you are advised that Section 1103(a) of the Ethics Act would not prohibit you from running for re- election as Borough Mayor regardless of whether your son -in -law would be promoted to the position of Chief of Police. You are further advised that if you would be re- elected Mayor, your son -in -law's service with the Borough Police Department would not in and of itself form the basis for a conflict of interest for you pursuant to the Ethics Act, even if he would be serving as Chief of Police. Subject to the statutory exceptions to the above definition of "conflict" or "conflict of interest,' pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before you in your capacity as Borough Mayor that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Your son -in -law is not a member of your "immediate family" as that term is defined in the Ethics Act. Since your son -in -law is not a member of your immediate family, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact your son -in -law but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Therefore, absent some basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, Section 1103(a) of the Ethics Act would not restrict you from performing your mayoral duties. The ropriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Borough Code. Shadle, 08 -529 March 26, 2008 Page 4 Conclusion: As Mayor of the Borough of Littlestown ( "Borough "), you are a public official subject to the 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 prohibit you from running for re- election as Borough Mayor regardless of whether your son -in -law- -who currently serves as Sergeant of the Borough Police Department--would be promoted to the position of Chief of Police. If you would be re-elected Mayor, your son -in -law's service with the Borough Police Department would not in and of itself form the basis for a conflict of interest for you pursuant to the Ethics Act, even if he would be serving as Chief of Police. Subject to the statutory exceptions to the Ethics Act's definition of "conflict" or "conflict of interest," pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in matters before you in your capacity as Borough Mayor that would financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Since your son -in -law is not a member of your immediate family as that term is defined in the Ethics Act, you would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters that would financially impact your son -in -law but that would not financially impact you, a member of your immediate family, or a business with which you or a member of your immediate family is associated. Therefore, absent some basis for a conflict of interest such as a private pecuniary benefit to you, a member of your immediate family, or a business with which you or a member of your immediate family is associated, Section 1103(a) of the Ethics Act would not restrict you from performing your mayoral duties. 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, Robin M. Hittie Chief Counsel