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HomeMy WebLinkAbout93-523 BoyleLt. William R. Boyle 16 West Scribner Avenue DuBois, PA 15801 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 3, 1993 93 -523 Re: Candidacy, Public Official /Employee, City Police Lieutenant, Candidate, County Sheriff. Dear Lt. Boyle: This responds to your letter of January 25, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a city police lieutenant with regard to his candidacy for county sheriff where, if elected, he would terminate employment with the police department. Facts: Noting a prior telephone conversation with Commission staff, as a Police Lieutenant for the City of DuBois, Pennsylvania, you request an advisory from the State Ethics Commission. You inquire as to the legality, under the Ethics Law, of your seeking the office of Sheriff of Clearfield County while maintaining your position in the City of DuBois Police Department. You state that if elected Sheriff, you would terminate your employment with the Police Department. You state that in talking with Commission staff, you were told that the only violation would be if you were to hold two positions at the same time. You further note that you have additionally contacted the City Solicitor, the Attorney General's Office, the Department of Community Affairs and Mr. Domer Orndorf, Supervisor Police Consultant, regarding the legality of your proposed conduct. A copy of your job description has been obtained from the City of DuBois, which document is incorporated herein by reference. Based upon all of the above, you request an advisory from the State Ethics Commission. Lt. William R. Boyle March 3, 1993 Page 2 Discussion: It is initially noted that your statements to the effect that you were given an advisory over the telephone are inaccurate. To the contrary, advisories are never made over the telephone. Turning to your inquiry, as a Police Lieutenant for the City of DuBois, Pennsylvania, you are a public employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law 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 in the Ethics Law as follows: 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 impactor 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 Lt. William R. Boyle March 3, 1993 Page 3 anything of monetary value and no public 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. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the instant matter, the Ethics Law does not prohibit a public employee such as a City Police Lieutenant from seeking public office as a County Sheriff. To the extent the Ethics Law has been applied to determine the incompatibility of various positions, those situations involve individuals simultaneously holding two or more positions which have been statutorily declared incompatible. Such would not be the case in this matter, where, if elected, you would terminate your employment with the City of DuBois Police Department. However, a public official /public employee may not use the authority of office for the advancement of his candidacy, because such would constitute a private pecuniary benefit. The public official /public employee must exercise caution so that his activities as a candidate do not conflict with his public duties. Thus, a public official /public employee could not perform campaign activities using governmental facilities or personnel. In particular, the governmental telephones, postage, staff, equipment, research materials, personnel, or any other property could not be used as a means, in whole or part, to carry out campaign activities. In addition, the public official /public employee could not during government working hours, promote such campaign activities. Subject to the restrictions, conditions, and qualifications noted above, the Ethics Law would not prohibit your seeking office as Sheriff of Clearfield County while maintaining your position as a Police Lieutenant with the City of DuBois Police Department. 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the respective municipal code; ordinances or regulations pertaining to the City of DuBois, Pennsylvania; or the Hatch Act. Conclusion: As a Police Lieutenant for the City of DuBois, Pennsylvania, you are a public employee subject to the provisions of the Ethics Law. The Ethics Law would not preclude you from Lt. William R. Boyle March 3, 1993 Page 4 seeking office as the Sheriff of Clearfield County while maintaining your position in the City of DuBois Police Department, subject to the restrictions, conditions and qualifications as noted above. Lastly, the propriety of the proposed 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 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. 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 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. Salerely, Vincent . Dopko Chief Counsel