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Home My WebLink About93-541 StrellecDavid P. Strellec, Esquire Suite B, 100 Fifth Avenue Tarentum, PA 15084 Dear Mr. Strellec: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 1 71 08 - 1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 5, 1993 93 -541 Re: Conflict, Public Of Solicitor, Candidate, District Justice, Legal Advice Regarding Opposition Candidate. This responds to your letter of March 4, 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 borough solicitor who is a candidate for district justice, with regard to advising borough council as to the propriety of the opposition candidacy of a borough police officer. Facts: As Solicitor for the Borough of Tarentum in Allegheny County, Pennsylvania, since 1985, you seek an advisory from the State Ethics Commission. You have made it publicly known that you intend to file your petition on or before March 9, 1993, to run for District Justice. One of the other five or six opposition candidates is a police officer for the Borough of Tarentum. You have been asked whether the police officer can properly run for an elective position. You are aware of 53 P.S. §46190(6), a copy of which you have submitted. You state that your legal opinion is that the suspension of the officer for running for an elective office is a discretionary matter of Council, such that Council would be justified in suspending or removing an officer for running for an elected office, but would not be mandated to do so. As an opposition candidate and as the Solicitor, you ask whether it would be ethical for you to give an opinion, or whether you should abstain from making that statement and suggest that Council get an outside legal opinion. You acknowledge that your interpretation of 546190 may be erroneous, and that you are not David P. Strellec, Esquire April 5, 1993 Page 2 sure you can be totally objective in answering this question. Based upon the above, you request an advisory from the State Ethics Commission. Discussion: As Solicitor for the Borough of Tarentum, 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 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 official /employee shall David P. Strellec, Esquire •` April 5, 1993 Page 3 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. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee, who in the discharge of his official duties, would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In applying the above provisions of the Ethics Law to the David P. Strellec, Esquire April 5, 1993 Page 4 circumstances which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. As Solicitor for the Borough of Tarentum, your duties include providing legal advice to the Borough Council. Thus, there can be no doubt that in providing legal advice to Council as to the propriety of a Borough police officer running for an elected position, you would be using the authority of your public position. It is also clear that such a use of authority of your public position would be for your private pecuniary benefit given that the police officer is your opposition candidate. See, Pepper, Opinion 87 -008. Based upon all of the above, Section 3(a) would prohibit you from acting in your capacity as Solicitor for the Borough of Tarentum to advise Borough Council on the propriety of a Borough police officer running for the position of District Justice which you also seek. In each instance of a conflict of interest, you are required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. 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 Borough Code or the Rules of Professional Conduct. Conclusion: As Solicitor for the Borough of Tarentum in Allegheny County, Pennsylvania, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would restrict you, in your capacity as Solicitor for the Borough of Tarentum, from providing legal advice to Borough Council as to the propriety of a Borough police officer running for the office of District Justice, where you also seek that elected office. In each instance of a conflict of interest, you are required to abstain from participation and to fully satisfy the disclosure requirements of Section 3(j) as set forth 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 David P. Strellec, Esquire April 5, 1993 Page 5 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 52.12. cerely, Vincent A Dopko Chief Counsel