HomeMy WebLinkAbout84-626 ClarkDavid W. Clark, Councilman
817 Bellefonte Avenue
Kenhorst, PA 19607
Dear Mr. Clark:
M .. I,,,n Arirkoec
f..: f - i 7 :t
Re: Police Force, Father, Abstention
November 2, 1984
ADVICE OF COUNSEL
84 -626
This responds to your letter of October 10, 1984, in which you requested
Advice from the State Ethics Commission.
Issue: You ask whether, as an elected Borough councilmember, you may
participate in meetings at which items regarding a police contract are
discussed when your father is a member of the bargaining unit in question.
Facts: You are a Borough councilmember in the Borough of Kenhorst,
hereinafter, the Borough. The Borough has a police force consisting of two
full -time patrolmen, a sergeant, and a chief. The police force has decided to
"head in the direction of a contract" which would include the positions listed
with the exceptions of the chief. The police sergeant in question is your
father.
As the situation arose, the solicitor for the Borough opined that you
should be involved in all meetings, whether public or workshop sessions,
regarding all issues which pertain to the Borough. The solicitor, further,
indicated that the "only problem is when it comes to a vote" that you should
"abstain and have it noted in the minutes ". You are in agreement with this
opinion.
However, the other members of council have recently held two meetings of
which you became aware regarding the police contract and every member of
council, other than yourself, was informed and present at those meetings. You
feel that you have a right and an obligation to be alerted to be present at
and participate in every aspect of the work of this Borough, including
meetings regarding the police contract.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
David W. Clark
November 2, 1984
Page 2
You have asked a solicitor to resolve this situation with the president
of council and other members of council but, have in addition, asked us to
address the question of whether or not there is any conflict of interest under
the Ethics Act in your activity under these circumstances.
Discussion: As a member of Borough council you are clearly "public official"
as that term is defined in the State Ethics Act. As such, your conduct must
conform to the requirements of the State Ethics Act.
The main requirements of the State Ethics Act which must be observed are
found in Section 3(a) and Section 1 of the Ethics Act reprinted for ease of
reference as follows:
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403 (a)
Section 1. Purpose.
The Legislature hereby declares that public office is a
public trust and that any effort to realize personal
financial gain through public office other than
compensation provided by law is a violation of that trust.
In order to strengthen the faith and confidence of the
people of the State in their government, the Legislature
further declares that the people have a right to be
assured that the financial interests of holders of or
candidates for public office present neither a conflict
nor the appearance of a conflict with the public trust.
Because public confidence in government can best be
sustained by assuring the people of the impartiality and
honesty of public officials, this act shall be liberally
construed to promote complete disclosure. 65 P.S. 401
David W. Clark
November 2, 1984
Page 3
The opinions of the Commission have indicated that a Township
commissioner, even though Section 3(a) of the Ethics Act would not be
implicated because his son was neither a minor nor dependant, should avoid
even the "appearance" of a conflict of interest by abstaining from
participating in the Township's discussions or decisions relating to the
appointment of his son or other candidates to a position of employment with
the Township. See O'Reilly /Johnston, 83 -012. Similarly, in a situation where
even though your father is not a member of your "immediate family" it would
seem that in order to avoid even the appearance of a conflict of interest with
public trust you should generally be required to abstain from the Borough's
decisions with respect to your father in particular.
However, with respect to the negotiating situation, the Commission has
issued a number of other decisions with respect to school board directors who
may have spouses serving as teachers within the school district. In these
decisions, the Commission has indicated that a school director must refrain
from participating in negotiations, discussions or meetings regarding any
collective bargaining agreement but that he may vote on final ratification of
a collective bargaining agreement where he or she properly has refrained from
participation as outlined above and where the final agreement to be voted on
affects the spouse no more or less than any other member of the bargaining
unit. Krier, 84 -002 and Blaney, 84 -003. Thus, in the situation which you
outlined, you would not be permitted, consistant with the Ethics Act, to vote
on any matter in which your father would be particularly benefitted whether
that be in the context of retention of employment, promotion, or as a result
of a specific collective bargaining agreement. Likewise, in order to avoid
any appearance of impropriety, you should not attempt, through the context of
the negotiations process, to pursuade or "direct" the course of these
negotiations on the contract in order that the final agreement would be
uniquely beneficial to your father.
However, there is no prohibition under the Ethics Act or the opinions of
this Commission which would preclude you from being present at those sessions
of council where the collective bargaining agreement is discussed. The cases
regarding the spouse who is a member of the official's "immediate family"
outlined above, Krier and Blaney, do not preclude you, under the circumstances
and facts present Vie, from participating in the negotiations, discussions or
meetings of the Borough with respect to this collective bargaining agreement.
This is because your father, unlike the spouse(s) in Krier and Blaney, is not
within the scope of your "immediate family" as defined in the Ethics Act.
David W. Clark
November 2, 1984
Page 4
Similarly, so long as the collective bargaining agreement in this case would
not affect your father any more or less than any other member of the
bargaining unit, you would not, necessarily, consistent with the Ethics Act,
be required to abtain from the Borough's final decision with respect to this
collective bargaining agreement. However, the advice of your solicitor should
be observed with respect to this matter.
Conclussion: Neither the Ethics Act nor the opinions of the Ethics Commission
with respect to this circumstance would require that you be precluded from
participation in negotiations, discussions, or meetings regarding the
collective bargaining agreement as outlined above. The advice of your
solicitor should be observed with respect to the question of your final vote
on the collective bargaining agreement. However, so long as your father would
be affected no more or less than any other member of the bargaining unit there
would be no absolute requirement that, in order to comply with the Ethics Act,
you abstain from participating in the Borough's final decision with respect to
this collective bargaining agreement.
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,
andra S. ristianson
General Counsel