HomeMy WebLinkAbout85-501 BinghamH. Cyril Bingham, Jr.
c/o William Snyder, Jr, Esquire
215 West Penn Street
P.O. Box 656
Bedford, PA 15522
Re: Candidacy, Borough Patrolman
Dear Mr. Bingham:
January 2, 1985
ADVICE OF COUNSEL
85 -501
This responds to the letter of your counsel of November 29, 1984, in
which, he, on your behalf, requested advice from the State Ethics Commission.
Issue: You ask whether there is a violation of the Ethics Act or the Borough
Code insofar as you might become a candidate for nomination to the position of
office of District Magistrate.
Facts: The letter of your counsel indicates that you have been a patrolman on
the Bedford Borough hereinafter, the Borough police force for approximately
eleven years. You desire to become a candidate at the May, 1985 primary on
both major party tickets for the nomination to the office of District Justice
in the Magisterial District 57 -3 -02, which includes the Borough and several
surrounding townships.
Further, the letter of your counsel indicates that, pursuant to Section
1190 of the Borough Code, 53 P.S. 46190, your efforts to engage or participate
in any political election or campaign might subject you to suspension,
removal, or reduction in rank. You intend to request a leave of absence,
without pay, for the period of time when you will actually engage or
participate in the conduct of an election campaign associated with your
candidacy for the nomination to the office of District Justice.
H. Cyril Bingham, Jr.
January 2, 1985
Page 2
However, the problem that you, through your counsel present, is in
determining when you become engaged in or particpating in an election campaign
and identifying that point in time when such activity begins so that you can
avoid the appearance of impropriety or the existence of an actual conflict of
interest. Thus, you pose the question of whether you may be guided by the
definition of the term "candidate" in the "regulations" as set forth in the
rules governing standards of conduct of District Justices, we assume.
Further, your counsel asks whether there is a violation of the Borough Code
and or the "Act," we assume the Ethics Act, in the event that you would, prior
to the time of first circulation of nomination petitions, undertake various
activities, including: appearing at meetings of political parties; privately
stating the fact of your prospective candidacy to individuals; being
identified without your consent or with or without your personal presence at
public meetings as a candidate; placing an advertisement in a local paper
identifying yourself as a candidate; addressing any public meeting as a
candidate or as a prospective candidate; addressing any public meeting,
without reference to the fact that you may be a candidate on some topic or
theme related to politics; or communicating by radio or television your
intention to become a candidate and /or the fact that you have become a
candidate.
Discussion: In order for your conduct to be subject to the restrictions of
the Ethics Act you would have to be a "public employee" as that term is
defined in the State Ethics Act. See Section 2, State Ethics Act, 65 P.S. 402
and the regulations promulgated under the Ethics Act found at 51 Pa. Code 1.1.
Generally, the Ethics Commission, pursuant to its regulations has found that
police officers, meaning patrolman and the like, are not generally within the
purview of the term "public employee." See 51 Pa. Code, definition of "public
employee," (iv) (A). Thus, there is some question as to whether or not your
conduct, as a patrolman and as a potential candidate for public office would
be at all subject to or restricted by the provisions of the Ethics Act.
In any event, even if your conduct were subject to the provisions of the
Ethics Act, the Ethics Act does not state that it is inherently compatible for
a public official and /or public employee to serve as a patrolman and to
simultaneously seek the office of or nomination to the office of District
Justice. The main prohibition under the Ethics Act and the opinions of the
Ethics Commission is that you may not serve the interests of two persons,
groups, or entities, whose interests may be adverse to each other. See
Alfano, 80 -007. In the situation outlined above, there does not appear to be
any inherent incompatibility or adversity of the interests which you would
serve as a patrolman and as a candidate for the nomination to the office of
District Justice.
We are concerned however, that your question seems to seek to secure a
ruling under the provisions of the Borough Code or the rules governing the
standards of conduct of District Justices or candidates for said office. We
note that this advice is issued solely under the Ethics Act and should not be
H. Cyril Bingham, Jr.
January 2, 1985
Page 3
understood to nor can it serve as "clearance" to operate under any code,
statute, ordinance, regulation, or rules of conduct, etc. other than the
Ethics Act. Thus, your reference to the provisions to the Borough Code or the
definition of "candidate" in the regulations or the rules governing the
standards of conduct of District Justices or candidates for said office may
not be subject to our review.
Should you have any further questions that may be subject to the review
of the Ethics Commission, please re- submit these questions in a form which is
more clear or capable of response.
Conclusion: We cannot provide you with a response as to the propriety of your
conduct under the Borough Code or as to the application of the definition of
"candidate" or any provisions of the rules governing the standards of conduct
for District Justices or candidates for said office. However, under the
circumstances outlined above, and under the provisions of the Ethics Act, we
can conclude that there is no inherent prohibition under the Ethics Act if you
were to serve as both a public employee (assuming that you, as a patrolman,
fall within this category) and as a candidate for the nomination to the office
of District Justice. Accordingly, you may, consistently with the Ethics Act,
undertake these two functions, if and when you choose to do so.
Pursuant to Section 7(9)(ii), 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, providing the requestor 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 request that the full Commission review this Advice. A
personal appearance before the Commission will be scheduled and a formal
Opinion from the Commission will be issued. Any such appeal must be made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
SSC /sfd
Sincerely,
'CFir i s i a n so n
General Counsel