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HomeMy WebLinkAbout88-644 HanderhanSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 26, 1988 Cpl. Blaine R. Handerhan 88 -644 c/o Mt. Carmel Police Department Municipal Building 100 North Vine Street Mount Carmel, PA 17851 -1393 Re: Simultaneous Service, Coroner and Police Officer Dear Mr. Handerhan: This responds to your letter of September 21, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restrictions upon a police officer from also serving or being employed as a coroner. Facts: In your letter you state that in 1989 you will be a candidate for the office of coroner in Northumberland County. You then state that if you would be successful in your campaign for elected office, you would like an opinion as to whether a conflict would exist between the position of coroner and your current position as full -time police officer with the Borough of Mt. Carmel Police Department which is also located in Northumberland County. Discussion: If you are elected to the office of coroner in Northumberland County, you would be a "public official" as that term is defined in the Ethics Act. 65 P.S. S402; 51 Pa. Code S1.1. As such, your conduct would be subject to the provisions of the Ethics Act and the restrictions therein would be applicable to you. Cpl. Blaine R. Handerhan October 26, 1988 Page 2 Section 3(a) of the Ethics Act provides: 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 o b t a i n 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 3(a) basically provides that a public official may not use public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a member of his immediate family or a business with which he is associated which is not provided for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure any financial gain for himself or a member of his immediate family or a business with which he is associated unless it is provided for by law. Domalakes Opinion, 85 -010. However, as outlined above, there does not appear to be a real possibility of any financial gain or inherent conflict arising if you were to serve both as a public official as coroner and as police officer. Basically, the Ethics Act does not state that it is inherently incompatible for a public official to serve or be employed as a police officer. The main prohibition under the Ethics Act 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 Alfano Opinion, 80 -007. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for Cpl. Blaine R. Handerhan October 26, 1988 Page 3 public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Reference to Section 3(b) of the Ethics Act is made in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which must be observed, a public official must neither offer nor accept anything of value on the understanding or with the intention that the public official's judgment would be influenced thereby. It is assumed such a situation does not exist here. Reference to this Section is added not to indicate that any . such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. S403(d). However, under Section 3(d) of the Ethics Act, the State Ethics Commission may address other areas of possible conflicts of interests. 65 P.S. §403(d). The parameters of the types of activities encompassed by this provision of law may generally be determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests of public officials do not conflict with the public trust or create the appearance of a conflict with the public trust. Although there is no per se prohibition to your simultaneous service under the Ethics Act, if any situation would arise where your actions in one position of public employment would have to be passed upon or reviewed by yourself in your other position of public employment, you could not participate in such action because a conflict of interest would arise under §3(a) and 3(d) of the Ethics Act. The conflict would exist because you would Cpl. Blaine R. Handerhan October 26, 1988 Page 4 have performed an action as part of your duties in one position of public employment and then you would be reviewing your own actions in your other position of public employment. In that instance you must abstain and note that of public record. Lastly, it must be noted that the propriety of your proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct has not been addressed in this advice. Conclusion: If you are the elected coroner in Northumberland County you would become a "public official" subject to the provisions of the State Ethics Act. As a public official, you may, consistent with Section 3(a) of the Ethics Act, simultaneously serve in the positions of coroner and police officer. However, under Sections 3(a) and 3(d) of the Ethics Act, in the event that you would be called upon in one capacity to review the actions that you did in your other official capacity, you would have to abstain in those instances and note that of public record. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. 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 52.12. $lcerely, Vincent J. Dopko, General Counsel