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Home My WebLink About10-590 SHUMAKER ADVICE OF COUNSEL June 28, 2010 Paula B. Shumaker 320 E. Patrick Road Palmyra, PA 17078 10-590 Dear Ms. Shumaker: This responds to your letter dated May 14, 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 an individual serving as a police officer with a municipal police department to run for the office of Magisterial District Judge for a District Court located in a county other than that in which the municipal police department is located. Facts: You have requested an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are employed as a police officer with the Ephrata Police Department (“Police Department”), located in Lancaster County, Pennsylvania. You reside in Lebanon County, Pennsylvania. You state that you are considering running in 2011 for the office of Magisterial District Judge for District Court 52-3-05, located in Lebanon County. You state that you plan to resign from your position as a police officer with the Police Department if you are elected as Magisterial District Judge. Based upon the above submitted facts, you ask whether there would be any conflicts or ethics issues if you would choose to run for the office of Magisterial District Judge for District Court 52-3-05. 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 Shumaker, 10-590 June 28, 2010 Page 2 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 police officer with the Police Department. Therefore, the submitted facts are insufficient to enable a conclusive determination as to whether you are a public employee subject to the Ethics Act in that position. 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 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 Shumaker, 10-590 June 28, 2010 Page 3 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 instant matter, you are advised as follows. The Ethics Act does not prohibit a public official/public employee from seeking another public position. Rather, the Ethics Act prohibits a public official/public employee from simultaneously holding two positions that are statutorily incompatible or that result in an inherent conflict. Therefore, regardless of whether you are a “public employee” subject to the Ethics Act, the Ethics Act would not prohibit you from running for the office of Magisterial District Judge for District Court 52-3-05 while serving as a police officer with the Police Department. You are reminded that candidates for the office of Magisterial District Judge are subject to the requirements for filing Statements of Financial Interests pursuant to Section 1104(b) of the Ethics Act, 65 Pa.C.S. § 1104(b). See, Darlington, Opinion 07-011. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of any civil service restrictions that might pertain to you. For legal advice beyond the scope of the Ethics Act, it is suggested that you consult with an attorney. Conclusion: The submitted facts are insufficient to enable a conclusive determination as to whether, in your capacity as a police officer with the Ephrata Police Department (“Police Department”), located in Lancaster County, Pennsylvania, you are a public employee subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Regardless of whether you are a “public employee” subject to the Ethics Act, the Ethics Act would not prohibit you from running for the office of Magisterial District Judge for District Court 52-3-05, located in Lebanon County, Pennsylvania, while serving as a police officer with the Police Department. 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 Shumaker, 10-590 June 28, 2010 Page 4 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