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HomeMy WebLinkAbout13-558 Gibson ADVICE OF COUNSEL August 12, 2013 Mark S. Gibson 226 King Street, Apt. 2 Pottstown, PA 19464 13-558 Dear Mr. Gibson: This responds to your letter dated July 8, 2013, 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 Constable with regard to simultaneously serving as a Civilian Processor I for the Borough of Pottstown (“Pottstown”) Police Department. Facts: You are a Constable. You have been offered a position as a Civilian Processor I for the Pottstown Police Department. You have submitted a copy of a job description for the position of Civilian Processor I for the Pottstown Police Department, which document is incorporated herein by reference. Per the job description, the purpose and duties of a Civilian Processor I are as follows: PURPOSE OF THE POSITION: - This is police civilian services work. The Civilian Processor I incarcerates prisoners and processes prisoners through Photo and Live Scan fingerprinting systems, performs video arraignments and monitors juveniles who have been arrested or detained until released or transferred. The position also includes receiving calls for assistance via the police administrative telephone line, police officers, individuals that walk-in and performs CLEAN entries and other record department functions. The position involves communication and interaction with the general public, other law enforcement agencies and governments. After an initial training period, duties are performed with reference to prescribed practices and procedures with minimal immediate supervision requiring the incumbent to exercise good judgment and initiative. . . . . Gibson, 13-558 August 12, 2013 Page 2 Duties: - Lock up prisoners in the cell block for both our police department and other police departments and or constables; release prisoners to other police departments; perform security checks in the cell block and monitor prisoners via the close [sic] circuit television system. - Monitor borough hall secure entrances via close [sic] circuit television and periodically check on borough employees at the water and wastewater treatment plants. - Process our prisoners through the Photo and Live Scan fingerprinting systems; perform video arraignments. - Monitor juveniles who have been arrested or detained until their release or transfer (to include juveniles picked up in after school incidents). - Handle routine requests for police or other service from the general public, government/law enforcement entities and other offices. - Maintain accuracy and integrity of computerized and hard copy files to include warrant files, towing logs, criminal history logs. - Operate CLEAN terminal; ensures accuracy and completeness of data entered into CLEAN/NCIC and updates as necessary. - Enter and maintain computerized and hard copy data files for municipal activities including traffic citations, accident reports, parking tickets, card comments and other duties assigned by the Information Systems Clerical Work Leader. - Develops and distributes information and summaries regarding criminal activity; testifies in court as required; responds to requests for information, directs persons to correct department. Job Description, at 1, 3. You ask whether the Ethics Act would permit you to simultaneously serve as a Constable and a Civilian Processor I for the Pottstown Police Department. You state that it would be your intention to conduct any Constable business during non-work hours. 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. Based upon the submitted job description, it appears that if you would be hired as a Civilian Processor I for the Pottstown Police Department, you would not be responsible for taking or recommending official action of a nonministerial nature, and therefore, in that position, you would not be considered a “public employee” subject to the Ethics Act. However, 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 Gibson, 13-558 August 12, 2013 Page 3 (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 pertaining to conflicts of interest under the Ethics Act are defined 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. 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. Currently, there does not appear to be any statutorily-declared incompatibility precluding simultaneous service in the positions in question. 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 Gibson, 13-558 August 12, 2013 Page 4 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. 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 a Constable and a Civilian Processor I for the Pottstown Police Department. Consequently, such simultaneous service would be permitted within the parameters of Section 1103(a) of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted job description, it appears that if you would be hired as a Civilian Processor I for the Borough of Pottstown Police Department, you would not be responsible for taking or recommending official action of a nonministerial nature, and therefore, in that position, you would not be considered a “public employee” subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et seq. As a Constable, you are a "public official" subject to the provisions of the Ethics Act. Subject to the restrictions, conditions and qualifications set forth above, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Constable and Civilian Processor I for the Borough of Pottstown 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 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