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HomeMy WebLinkAbout89-602 JonesMr. Kenneth C. Jones, Jr. 569 Lafayette Avenue Palmerton, PA 28072 Dear Mr. Jones: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 27, 1989 89 -602 Re: Simultaneous Service, Borough Council and Auxiliary Policeman. This responds to your letter of November 20, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a borough council member from also serving or being employed as a borough auxiliary police officer. Facts: You have been elected to the Council of the Borough of Palmerton and will assume your duties on January 2, 1990. You are currently employed as an auxiliary police officer in the borough, but you work on an as needed basis in that you do not have regularly scheduled working hours. You average approximately forty hours per month and your duties are limited to providing security at the Palmerton Hospital and providing security and traffic control at the Palmerton Area High School. You conclude by requesting advice as to whether your position as borough council member would disqualify you from working as an auxiliary police officer for the borough. Discussion: As a Council Member for Palmerton Borough, you will become a "public official" as that term is defined in the Ethics Law and hence you will be subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code S1.1. Mr. Kenneth C. Jones, Jr. Page 2 Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: Section 2. 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. "Conflict" or "conflict of interest" 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 or 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that official /employee would be influenced thereby. Mr. Kenneth C. Jones, Jr. Page 3 In applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if you were to serve both as a public official /employee and as an auxiliary police officer. Basically, the Ethics Law does not state that it is inherently incompatible for public official /employee to serve or be employed as auxiliary police officer. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Smith Opinion, 89 -010. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. In Deitrick, Opinion 89 -022, the Commission determined that a borough council member could simultaneously serve in that position and be employed as street manager and certified water works operator in that the latter two positions of employment were not deemed to be borough offices. Based upon the foregoing opinion, you would not be precluded from serving on borough council and being employed as auxiliary police officer for the borough. However, if a situation arises where you or the respective entities you represent develop an adverse interest, then you must remove yourself from that particular matter and disclose the nature of your interest in a written memorandum to the appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise, you may seek additional advice from the Commission. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 in this advice is the applicability of the Borough Code. Conclusion: As a Council Member for Palmerton Borough, you will become a "public official" subject to the provisions of the Ethics Law. As a public official /employee, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of borough council member and borough auxiliary policemen. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Mr. Kenneth C. Jones, Jr. Page 4 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12.. Sincerely, A Vincent t7. Dopko, Chief Counsel