HomeMy WebLinkAbout10-581 Zubey
ADVICE OF COUNSEL
May 19, 2010
E. Michael Zubey, Jr., Esquire
Masano Bradley
Suite 201
1100 Berkshire Boulevard
Wyomissing, PA 19610
10-581
Dear Mr. Zubey:
This responds to your letters dated April 12, 2010, and April 20, 2010, by which
you requested an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon a borough
council member with regard to simultaneously serving as a part-time police officer with
the borough, where the borough has a population of more than 3,000.
Facts:
As Solicitor for the Borough of Hamburg (“the Borough”), you have been
authorized by a Member of Borough Council (hereinafter referred to as “the Council
Member”) to request an advisory from the Pennsylvania State Ethics Commission on his
behalf. You have submitted facts, the material portion of which may be fairly
summarized as follows.
You state that the Borough has a population in excess of 3,000.
The Borough maintains a full-time police department that employs a number of
part-time police officers. The Council Member is considering employment as a part-time
police officer with the Borough. You state that since the Council Member was sworn
into office, he has not engaged in any employment with the Borough. You state that as
a part-time Borough police officer, the Council Member would have no supervisory
authority and would perform the duties customarily undertaken by a patrol officer. You
further state that the Borough Chief of Police determines the schedule and hours of a
part-time police officer.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit the Council Member to simultaneously serve as a part-time Borough police
officer.
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
Zubey, 10-581
May 19, 2010
Page 2
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.
As a Member of Borough Council, the Council Member on whose behalf you
have inquired is a public official subject to the 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 related 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.
65 Pa.C.S. § 1102.
In applying the above provisions of the Ethics Act to the question of simultaneous
service, it is initially noted that the General Assembly has the constitutional power to
declare by law which offices are incompatible. Pa. Const. Art. 6, §2. Although the State
Ethics Commission does not have the express statutory jurisdiction to interpret such
other laws, it may review them to determine whether a conflict of interest exists under
the Ethics Act based upon a statutory incompatibility. Corcoran, Opinion 08-003.
A conflict of interest exists under the Ethics Act where a pecuniary benefit or
financial gain (such as salary, benefits, and the like) is derived as a result of holding
incompatible positions simultaneously. The State Ethics Commission has determined
that if a particular statutory enactment prohibits an official from receiving a particular
pecuniary benefit or financial gain, then that official's receipt of same, through the
authority of public office, is unauthorized in law and hence, contrary to Section 1103(a) of
the Ethics Act.
Zubey, 10-581
May 19, 2010
Page 3
In this case, in order to determine whether a particular pecuniary benefit or
financial gain is prohibited by law, the following provision of the Borough Code must be
reviewed:
§ 46104. Appointments; incompatible offices
Unless there is incompatibility in fact, any elective or
appointive officer of the borough shall be eligible to serve on
any board, commission, bureau or other agency created by
or for the borough, or any borough office created or
authorized by statute and may accept appointments
thereunder, but no mayor or member of council shall receive
compensation therefor. No elected borough official of a
borough with a population of 3,000 or more may serve as an
employe of that borough. Where there is no incompatibility
in fact, and subject to the foregoing provisions as to
compensation, appointees of council may hold two or more
appointive borough offices, but no mayor or member of
council may serve as borough manager or as secretary or
treasurer….
53 P.S. § 46104 (Emphasis added).
Based upon the submitted fact that the Borough population exceeds 3,000, the
above provision of the Borough Code appears to prohibit simultaneous service in the
positions in question. Any compensation or other financial gain or pecuniary benefit that
the Council Member would receive while simultaneously holding the positions of
Borough Council Member and part-time police officer with the Borough would be a gain
other than compensation provided for by law. Therefore, you are advised that the
Council Member may not, consistent with Section 1103(a) of the Ethics Act,
simultaneously serve as a part-time Borough police officer to the extent that the Council
Member would receive any compensation or other financial gain or pecuniary benefit in
either position.
Lastly, the propriety of the proposed course of conduct has only been addressed
under the Ethics Act.
Conclusion:
As a Member of Borough Council for the Borough of Hamburg (“the
Borough”), the individual on whose behalf you have inquired (“the Council Member”) is a
public official subject to the provisions of the Public Official and Employee Ethics Act
(“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Based upon the submitted fact that the
Borough population exceeds 3,000, you are advised that the Council Member may not,
consistent with Section 1103(a) of the Ethics Act, simultaneously serve as a part-time
Borough police officer to the extent that the Council Member would receive any
compensation or other financial gain or pecuniary benefit in either position. Lastly, the
propriety of the proposed course of 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.
Zubey, 10-581
May 19, 2010
Page 4
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