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HomeMy WebLinkAbout90-545 BairdMr. Clark Baird Bolivar Borough Police Department Drawer C Bolivar, PA 15923 Dear Mr. Baird: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 15, 1990 90 -545 Re: Simultaneous Service, Borough Councilmember and Borough Police Officer. This responds to your letter of March 20, 1990, 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 councilmember from also serving or being employed as a borough police officer. Facts: You are currently a police officer of Bolivar Borough and are considering either running or being appointed to the position of councilmember to the borough. You inquire as to whether a member of the Bolivar Borough Council could also serve as a paid police officer for the borough. Discussion: If elected to borough council, you would become a "public official" as that term is defined in the Ethics Law and hence you would be subject to the provisions of the Ethics Law. 65 P.S. 402; 51 Pa. Code 1.1. 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. Mr. Clark Baird Page 2 "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. 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 borough police officer. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as borough 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. Smith Opinion, 89 -010. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. However, if a situation arises where you or the respective entities you represent develop an adverse interest, then you must Mr. Clark Baird Page 3 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, additional advice may be sought from the Commission. Although you would not be precluded from simultaneously service as borough councilmember and police officer under the Ethics Act, you should be aware that Act 18 of 1990 has recently amended Section 1104 of the Borough Code in part as follows: Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau or other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointments thereunder, but no mayor or councilman shall receive compensation therefor. No elected borough official of a borough with a population of 3,000 or more may serve as an employee of that borough... Since serious questions exist under the Borough Code as to whether you may simultaneously serve in those two positions assuming that the population of Bolivar Borough is 3,000 or more, it is suggested that you contact your private attorney and seek his advice on the propriety of such service under the Borough Code. 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. Conclusion: If you are a borough councilman, you would be 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 Councilmember and Borough Policeman. However, a serious question exists as to whether you may simultaneously serve in these positions under the Borough Code and it is suggested that you seek advice from private counsel in that regard. 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 Mr. Clark Baird Page 4 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 2.12. Sincerely, L/ V'L► Vincent J. Dopko, Chief Counsel