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HomeMy WebLinkAbout14-554 Finnerty ADVICE OF COUNSEL November 12, 2014 John P. Finnerty, Esquire Dougherty, Leventhal & Price, L.L.P. 75 Glenmaura National Blvd. Moosic, PA 18507 14-554 Dear Mr. Finnerty: This responds to your letters dated September 19, 2014, September 23, 2014, and October 2, 2014, 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 prohibitions or restrictions upon a township supervisor, who is also the police commissioner for the township police department, with regard to assisting the officer-in-charge of the township police department with the scheduling of police officers where he (the township supervisor/police commissioner) would not receive any compensation for doing so. Facts: As Solicitor for Pittston Township (“Township”), located in Luzerne County, Pennsylvania, you have been authorized by Township Supervisor Steven Rinaldi (“Mr. Rinaldi”) to request an advisory from the Pennsylvania State Ethics Commission on his behalf. You have submitted facts that may be fairly summarized as follows. The Township currently does not employ a Police Chief. Mr. Rinaldi is currently serving as the Police Commissioner for the Township Police Department (“Police Department”), and he does not receive any compensation for his services in that role. The collective bargaining agreement between the Township and the union representing the Township police specifically authorizes the Police Commissioner to perform scheduling for the Police Department in the absence of a Police Chief. The Officer-In- Charge of the Police Department is currently performing all police officer scheduling duties for the Police Department. If Mr. Rinaldi would assist the Officer-In-Charge of the Police Department with the scheduling of police officers, Mr. Rinaldi would not receive any compensation for doing so. Based upon the above submitted facts, you ask whether Mr. Rinaldi would be permitted to assist the Officer-In-Charge of the Police Department with the scheduling of police officers. Finnerty, 14-554 November 12, 2014 Page 2 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. As a Township Supervisor, Mr. Rinaldi is a public official 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: Finnerty, 14-554 November 12, 2014 Page 3 § 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. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, 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. Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Having established the above general principles, you are advised that absent a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act or an improper understanding contrary to Section 1103(b) or Section 1103(c) of the Ethics Act, the Ethics Act would not prohibit Mr. Rinaldi from assisting the Officer-In-Charge of the Police Department with the scheduling of police officers. 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 the Second Class Township Code. Conclusion: As a Supervisor for Pittston Township (“Township”), located in Luzerne County, Pennsylvania, Steven Rinaldi (“Mr. Rinaldi”) is a public official subject Finnerty, 14-554 November 12, 2014 Page 4 to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1) the Township currently does not employ a Police Chief; (2) Mr. Rinaldi is currently serving as the Police Commissioner for the Township Police Department (“Police Department”), and he does not receive any compensation for his services in that role; (3) the collective bargaining agreement between the Township and the union representing the Township police specifically authorizes the Police Commissioner to perform scheduling for the Police Department in the absence of a Police Chief; (4) the Officer-In-Charge of the Police Department is currently performing all police officer scheduling duties for the Police Department; and (5) if Mr. Rinaldi would assist the Officer-In-Charge of the Police Department with the scheduling of police officers, Mr. Rinaldi would not receive any compensation for doing so, you are advised that absent a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act or an improper understanding contrary to Section 1103(b) or Section 1103(c) of the Ethics Act, the Ethics Act would not prohibit Mr. Rinaldi from assisting the Officer-In-Charge of the Police Department with the scheduling of police officers. 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