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Home My WebLink About11-547 Confidential ADVICE OF COUNSEL September 21, 2011 11-547 This responds to your letter dated August 1, 2011, received August 5, 2011, by which you requested a confidential 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 Constable with regard to receiving a fee from a bail agency, in addition to collecting a fee from a county, for executing a bench warrant issued by such county’s court of common pleas against an individual. Facts: You are a Constable. You ask whether the Ethics Act would permit you to receive a fee from a bail agency, in addition to collecting a fee from a county, for executing a bench warrant issued by such county’s court of common pleas against an individual. 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. As a Constable, you are a public official subject to the provisions of 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: Confidential Advice, 11-547 September 21, 2011 Page 2 § 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 Commission has determined that if a particular statutory enactment prohibits a public official/public employee from receiving a particular pecuniary benefit or financial gain, then the public official’s/public employee’s receipt of same, through the authority of the public position, is unauthorized in law and hence, contrary to Section 1103(a) of the Ethics Act. Confidential Opinion, 03-003. Section 5749(e) of the Judicial Code provides as follows: § 5749. Prohibitions and penalties. (e) Public officials. --Any law enforcement officer, any employee of a penal institution, or any other system or related personnel, who has, directly or indirectly, any pecuniary interest in or derives any profit from the bonding business or activity of a professional bondsman commits a summary offense. 42 Pa.C.S. § 5749(e). The answer to the question of whether you would be permitted to receive a fee from a bail agency, in addition to collecting a fee from a county, for executing a bench warrant issued by such county’s court of common pleas against an individual hinges upon the proper interpretation of Section 5749(e) of the Judicial Code. The State Ethics Commission does not have the statutory jurisdiction to interpret the Judicial Code. Therefore, you are advised that if Section 5749(e) of the Judicial Code would prohibit you, in your capacity as a Constable, from receiving a fee from a bail agency, in addition to collecting a fee from a county, for executing a bench warrant issued by such county’s Confidential Advice, 11-547 September 21, 2011 Page 3 court of common pleas against an individual, then your receipt of such fee from a bail agency would constitute a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a Constable, 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. The State Ethics Commission does not have the statutory jurisdiction to interpret the Judicial Code. If Section 5749(e) of the Judicial Code would prohibit you, in your capacity as a Constable, from receiving a fee from a bail agency, in addition to collecting a fee from a county, for executing a bench warrant issued by such county’s court of common pleas against an individual, then your receipt of such fee from a bail agency would constitute a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. 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