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HomeMy WebLinkAbout92-531Mr. Michael M. Apfelbaum City of Sunbury 225 Market Street Sunbury, PA 17801 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 11, 1992 92 -531 Re: Simultaneous Service, City Housing Inspector and Fire Chief. Dear Mr. Apfelbaum: This responds to your letter of December 18, 1991, 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 city housing inspector from also serving or being employed as a fire chief for the city's volunteer fire department. Facts: As Solicitor for the City of Sunbury, you seek an advisory on behalf of Mr. Richard C. Bingaman, who is employed as a Housing Inspector for the City's Code Office. Mr. Bingaman has also served as a volunteer fireman since 1972, and has worked his way up the ranks to the position of Fire Chief commencing January of 1992. In your letter of inquiry, you advise that the Fire Chief receives a reimbursement of costs from the City of Sunbury which does not exceed $1,500. You note that the actual personal costs of the Fire Chief exceed $1,500 each year.- Mr. Bingaman and the City Councilman responsible for the Code Office, Mr. John Beuhner, are requesting an opinion from this Commission to relieve all concerns of conflict of interest. Both the Fire Chief and the Housing Inspector are involved in the investigation of buildings in the City. You note that both Mr. Bingaman and Mr. Beuhner hope that Mr. Bingaman will be allowed to continue to provide his services to the public sector. On December 31, 1991, in a telephone conversation with Mr. Michael M. Apfelbaum February 11, 1992 Page 2 Assistant Counsel for this Commission, you clarified your request for advice by providing the following additional facts. You state that although the Fire Department might theoretically be deemed to be part of the City government, all that ties the "Sunbury Fire Department" to the City of Sunbury is its name and financial support consisting of an unconditional grant to the fire companies in the amount of approximately $15,000, which is part of the City budget. Each of the various individual, all- volunteer fire companies which make up the Fire Department has its own officers and each appoints someone to serve on an overall Board. You state that this arrangement is by City Ordinance, but the fire companies "run their own show." The Fire Chief coordinates the efforts of these individual fire companies. With regard to the City's reimbursement of costs to the Fire Chief, you emphasize that this reimbursement does not cover the Fire Chief's actual costs because the cost of insurance goes up. The Fire Chief receives no salary or other payments. If injured, he would receive Worker's Compensation, and if he would die there would be a life insurance benefit in the amount of $500. The Fire Chief must do all of the filing of reports that a professional fire company is required to do, such as reports pertaining to arson. Although Mr. Bingaman may file reports in which he reaches conclusions as the Fire Chief, he may not fine individuals in his capacity as a Fire Chief. Furthermore, the Fire Chief would not be involved in inspecting houses unless there had been a fire. You state that the Code Enforcement Officer runs the City's Code Office. As Housing Inspector for the Code Office, Mr. Bingaman may find violations and issue citations with a District Justice. The Housing Inspector is hired by the Director of Public Safety (who is always one of the Councilmen) at his sole discretion and without regard to the other Councilmen. Based upon all of the above, you request an advisory from this Commission as to whether a conflict exists and whether the City should take any steps to resolve the4onflict. Discussion: As a Housing Inspector for the City of Sunbury, Mr. Bingaman is a "public employee" as that term is defined in the Ethics Law and hence he is subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §1.1. Additionally, based upon the facts which you have submitted, it would appear that there is a sufficient nexus between the City of Sunbury and the Mr. Michael M. Apfelbaum February 11, 1992 Page 3 Sunbury Fire Department, given the City Ordinance structuring the fire companies with an overall Board, the City's financial support of the fire companies, and its specific reimbursement to the Fire Chief, such that Mr. Bingaman would also in his capacity as Fire Chief be deemed a "public employee" subject to the Ethics Law. 65 P.S. 5402; 51 Pa. Code S1.1. 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. "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 of 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 Mr. Michael M. Apfelbaum February 11, 1992 Page 4 official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public 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 Mr. Bingaman were to serve as a public employee in both capacities as a Housing Inspector for the City of Sunbury and as Fire Chief for the Sunbury Fire Department. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed simultaneously in the capacities of a city housing inspector and fire chief. 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, Mr. Bingaman would not be serving entities with interests which are adverse to each other. However, if a situation arises where Mr. Bingaman or the respective entities which he represents develop an adverse interest, then Mr. Bingaman must remove himself from that particular matter and disclose the nature of his 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. 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 herein is the applicability of the respective municipal code. Conclusion: In both of his capacities as a Housing Inspector for the City of Sunbury and as the Fire Chief for the Sunbury Fire Department, Mr. Richard C. Bingaman is a "public employee" subject to the provisions of the Ethics Law. As a public official /employee, Mr. Bingaman may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in,4the positions of Housing Inspector for the City of Sunbury and Fire Chief for the Sunbury Fire Department. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Mr. Michael M. Apfelbaum February 11, 1992 Page 5 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. ,r. 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. Very truly yours, Vincent . Dopko, Chief Counsel