Loading...
HomeMy WebLinkAbout88-674 SerraDear Mr. Serra: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 29, 1988 Vincent J. Serra, Chief 88 -674 German Township Police R.D. 1, Box 287 McClellandtown, PA 15458 Re: Simultaneous Service, Police Chief and Township Secretary /Treasurer This responds to your undated - letter received by the State Ethics Commission on December 27, 1988 in which you requested advice. Issue: Whether the State Ethics Act imposes any prohibition or restriction upon a police chief from also serving or being employed as a township secretary /treasurer. Facts: You state that you are currently the Chief of Police of German Township, a township of the second class located in Fayette County. You then advise that you will be appointed township secretary /treasurer in addition to being Police Chief on January 1, 1989. You conclude by requesting advice from the Ethics Commission as to whether it would be a conflict for you to hold both of these positions. Discussion: As a Police Chief for German Township, you are a "public employee" as that term is defined in the Ethics Act. 65 P.S. 402; 51 Pa. Code 1.1. As such, your conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. 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 Vincent J. Serra, Chief December 29, 1988 Page 2 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). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. 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 employee and as township secretary /treasurer. Basically, the Ethics Act does not state that it is inherently incompatible for a public employee to serve or be employed as a township secretary /treasurer. 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 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 Vincent J. Serra, Chief December 29, 1988 Page 3 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). Under Section 3(b) of the Ethics Act cited above, which must be observed, a public employee must neither offer nor accept anything of value on the understanding or with the intention that the public his 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._403(d). However, under Section 3(d) of the State Ethics Act, the State Ethics Commission may address other areas of possible conflict of interest. 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 employee do not conflict with the public trust or create the appearance of a conflict with the public trust. Although the Ethics Act would not preclude you from simultaneously serving as police chief and township secretary /treasurer, you could not in your position of police chief use public office as a means of advancing your candidacy or alternatively as a means of eliminating any potential competitors for the position of township secretary /treasurer. See Pepper, Opinion 87 -008. It is expressly assumed that the foregoing has not occurred. Additionally, while you are on duty as a Police Chief, you could not during that time period also perform your services as township secretary /treasurer. Conversely, when you are performing your duties as township secretary /treasurer, that must be at times when you are not on duty as Chief of Police. See Forbes, Order 681. Finally, under Sections 3(a) and 3(d) of the Ethics Act, in the event that you would be called upon in one official capacity to review the actions you perform in your other official capacity, you must abstain in so doing and note your abstention of public record together with the reason for your abstention. Vincent J. Serra, Chief December 29, 1988 Page 4 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: As a Police Chief for German Township, you are a "public employee" subject to the provisions of the State Ethics Act. As a public employee, you may, consistent with Section 3(a) of the Ethics Act, simultaneously serve in the positions of Police Chief and township secretary /treasurer, subject to the qualifications and limitations noted above. 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 material facts and committed the acts complained of in reliance on the Advice given. such. This letter is a public record and will be made available as 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. Sincerely, Vincent J. Dopko General Counsel