HomeMy WebLinkAbout11-544 Burns
ADVICE OF COUNSEL
August 22, 2011
Mark Burns
Otto-Eldred Regional Police Department
3 Bennett Street
P.O. Box 270
Eldred, PA 16731
11-544
Dear Mr. Burns:
This responds to your letter dated July 20, 2011, 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 member of
the board of a regional police department, who in a private capacity is employed as a
commissioned police officer with a university, with regard to being hired by the regional
police department to provide services on a per diem basis for community events and
other occasions.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts that may be fairly summarized as follows.
You are a Member of the Board of the Otto-Eldred Regional Police Department
(“Police Department”). In a private capacity, you are currently employed as a
commissioned police officer with the University of Pittsburgh at Bradford.
Based upon the above submitted facts, you ask whether the Ethics Act would
impose any prohibitions or restrictions upon you with regard to being hired by the Police
Department to provide services on a per diem basis for community events and other
occasions.
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.
Burns, 11-544
August 22, 2011
Page 2
As a Member of the Board of the Police Department, 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.
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 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.
Burns, 11-544
August 22, 2011
Page 3
"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.
In each instance of a conflict of interest, a public official/public employee would
be required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 1103(j) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows:
§ 1103. Restricted activities
(f)Contract.--
No public official or public employee or
his spouse or child or any business in which the person or
his spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with
which the public official or public employee is associated or
any subcontract valued at $500 or more with any person
who has been awarded a contract with the governmental
body with which the public official or public employee is
associated, unless the contract has been awarded through
an open and public process, including prior public notice and
subsequent public disclosure of all proposals considered and
contracts awarded. In such a case, the public official or
public employee shall not have any supervisory or overall
responsibility for the implementation or administration of the
contract. Any contract or subcontract made in violation of
this subsection shall be voidable by a court of competent
jurisdiction if the suit is commenced within 90 days of the
making of the contract or subcontract.
65 Pa.C.S. § 1103(f).
The term “contract” is defined in the Ethics Act as follows:
§ 1102. Definitions
"Contract."
An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
Burns, 11-544
August 22, 2011
Page 4
arrangement between the State or political subdivision as
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
65 Pa.C.S. § 1102.
Section 1103(f) does not operate to make contracting with the governmental
body permissible where it is otherwise prohibited. Rather, where a public official/public
employee, his spouse or child, or a business with which he, his spouse or child is
associated, is otherwise appropriately contracting with the governmental body, or
subcontracting with any person who has been awarded a contract with the
governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an
“open and public process” be observed as to the contract with the governmental body.
Section 1103(f) of the Ethics Act also requires that the public official/public employee
may not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
An agreement or arrangement whereby you would be hired by the Police
Department to provide services on a per diem basis for community event(s) and other
occasion(s) would constitute a “contract” as that term is defined by the Ethics Act. The
Ethics Act itself would not prohibit you, in your private capacity, from entering into such
contract(s) with the Police Department. However, in your public capacity as a Member
of the Board of the Police Department, you would have a conflict of interest under
Section 1103(a) of the Ethics Act in matters pertaining to actual or anticipated
contract(s) between the Police Department and you. You also would be prohibited from
using the authority of your public position, or confidential information accessed or
received as a result of being a Member of the Board of the Police Department, to
effectuate a private pecuniary benefit to yourself through a detriment to a competitor for
Police Department work. See, Pepper, Opinion 87-008.
As noted above, in each instance of a conflict of interest, you would be required
to abstain from participation, which would include voting unless one of the statutory
exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the
disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied
in the event of a voting conflict.
The requirements of Section 1103(f) of the Ethics Act would have to be observed
whenever applicable. If, while serving as a Member of the Board of the Police
Department, you would enter into a contract with the Police Department, or would
subcontract with a person awarded a contract with the Police Department, and the value
of your contract/subcontract would be $500 or more, the restrictions of Section 1103(f)
of the Ethics Act would be applicable.
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
53 Pa.C.S. Chapter 23, Subchapter A (relating to intergovernmental cooperation).
Conclusion:
As a Member of the Board of the Otto-Eldred Regional Police
Department (“Police Department”), 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.
Burns, 11-544
August 22, 2011
Page 5
Based upon the submitted facts that in a private capacity, you are currently employed
as a commissioned police officer with the University of Pittsburgh at Bradford, you are
advised as follows. An agreement or arrangement whereby you would be hired by the
Police Department to provide services on a per diem basis for community event(s) and
other occasion(s) would constitute a “contract” as that term is defined by the Ethics Act.
The Ethics Act itself would not prohibit you, in your private capacity, from entering into
such contract(s) with the Police Department. However, in your public capacity as a
Member of the Board of the Police Department, you would have a conflict of interest
under Section 1103(a) of the Ethics Act in matters pertaining to actual or anticipated
contract(s) between the Police Department and you. You also would be prohibited from
using the authority of your public position, or confidential information accessed or
received as a result of being a Member of the Board of the Police Department, to
effectuate a private pecuniary benefit to yourself through a detriment to a competitor for
Police Department work. In each instance of a conflict of interest, you would be
required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 1103(j) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have
to be satisfied in the event of a voting conflict. The requirements of Section 1103(f) of
the Ethics Act would have to be observed whenever applicable. Lastly, the propriety of
the proposed 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
.
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