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HomeMy WebLinkAbout10-583 Miller ADVICE OF COUNSEL May 27, 2010 Bradley C. Miller 339 Hickory Street Mifflinburg, PA 17844 10-583 Dear Mr. Miller: This responds to your letter dated April 26, 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 permit a county deputy coroner, who also serves as a full- time police officer with a borough located in the county, to seek election to the office of county coroner and, if elected to such position, to simultaneously serve as a borough police officer and the county coroner. Facts: You have requested an advisory from the Pennsylvania State Ethics Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. You are currently employed as a full-time police officer with Lewisburg Borough (“Borough”), located in Union County (“County”), Pennsylvania. You also currently serve as a Deputy Coroner with the County. You state that the current County Coroner is not seeking reelection and that you have agreed to seek election to the office of County Coroner if you are able to do so. You state that the position of County Coroner is part-time and that you would retain your full- time position as a police officer with the Borough if you would be elected as the County Coroner. You express your view that there are no ordinances in the Code of the Borough of Lewisburg that would prohibit you from seeking an elected position with the County. You state that the Coroner’s office is tasked with investigating police-related shootings, fatal traffic accidents resulting from police pursuit, and the death of any suspect(s) while in police custody. You state that if any of the aforesaid situations would occur while you were serving in the positions of County Coroner and Borough police officer, assistance from a surrounding county would be requested. Miller, 10-583 May 27, 2010 Page 2 Based upon the above submitted facts, you ask whether any legal authority would prohibit you from seeking election as the County Coroner and, if elected to such position, from simultaneously serving as the County Coroner and a 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 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. Preliminarily, it is noted that police officers are generally not considered “public employees” subject to the Ethics Act. See, 51 Pa. Code § 11.1, “public employee,” subparagraph (v)(A). You have not submitted a job description for your position as a Borough police officer. Therefore, there are insufficient facts to enable a conclusive determination as to whether you are a public employee subject to the Ethics Act in that position. However, as a County Deputy Coroner, you are a public official as that term is defined in the Ethics Act, and therefore you are subject to the provisions of the Ethics Act. If you would be elected as the County Coroner, upon assuming said position, you would in that capacity be a public official subject to the Ethics Act. 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. Miller, 10-583 May 27, 2010 Page 3 65 Pa.C.S. §§ 1103(a), (j). 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. 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. Subject to certain statutory exceptions, 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. It is administratively noted that the Borough Code provides, in pertinent part, as follows: § 46190. Removals No person employed in any police or fire force of any borough shall be suspended, removed or reduced in rank except for the following reasons: . . . (6) Engaging or participating in conducting of any political or election campaign otherwise than to exercise his own right of suffrage. . . . Miller, 10-583 May 27, 2010 Page 4 53 P.S. § 46190. The Code of the Borough of Lewisburg provides, in pertinent part: § 80-3 Suspensions, removals, and reductions in rank. A. . . . [T]he Borough Council may at the recommendation of the Police, Public Works and Planning Committee suspend, remove, or reduce in rank any employee, member, or officer of the Police Department for, but only for, the following reasons: . . . (6) Engaging or participation in conducting of any political or election campaign otherwise than to exercise his own right of suffrage. . . . The Code of the Borough of Lewisburg, § 80-3. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. The Ethics Act would not prohibit you from seeking election as the County Coroner. However, the question of whether you may participate in or conduct a political or election campaign while serving as a Borough police officer is governed by restrictions of the Borough Code and the Code of the Borough of Lewisburg, not the Ethics Act. Since the State Ethics Commission does not have the statutory jurisdiction to interpret the Borough Code or the Code of the Borough of Lewisburg, it is recommended that you obtain legal advice as to same. With regard 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. There does not appear to be any statutorily-declared incompatibility precluding simultaneous service as the County Coroner and a police officer with the Borough. Turning to the question of conflict of interest, where simultaneous service would place the public official/public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. See, McCain, Opinion 02-009. Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official/public employee to function in the conflicting positions without running afoul of Section 1103(a) of the Ethics Act. Absent a statutorily-declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position. However, in each instance of a conflict of interest, the individual would be required to abstain, and in each instance of a voting conflict, to abstain and satisfy the disclosure requirements of Section 1103(j) as set forth above. In this case, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service as the County Coroner Miller, 10-583 May 27, 2010 Page 5 and a police officer with the Borough. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Deputy Coroner with Union County (“County”), Pennsylvania, 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. If you would be elected as the County Coroner, upon assuming said position, you would in that capacity be a public official subject to the Ethics Act. Based upon the submitted fact that you are currently employed as a full-time police officer with Lewisburg Borough (“the Borough”), located in the County, you are advised as follows. The Ethics Act would not prohibit you from seeking election as the County Coroner. However, the question of whether you may participate in or conduct a political or election campaign while serving as a Borough police officer is governed by restrictions of the Borough Code and the Code of the Borough of Lewisburg, not the Ethics Act. Since the State Ethics Commission does not have the statutory jurisdiction to interpret the Borough Code or the Code of the Borough of Lewisburg, it is recommended that you obtain legal advice as to same. Subject to the restrictions, conditions and qualifications set forth above, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as the County Coroner and a police officer with the Borough. 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, this 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