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