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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