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Home My WebLink About95-603 QuigleyPeter J. Quigley, Esquire Primose, Lyons and Quigley 17 North Sixth Street Stroudsburg, PA 18360 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 4, 1995 95 -603 Re: Conflict, Public Official /Employee, Regional Police Commission, Police Corporal, Spouse, Immediate family Dear Mr. Quigley: This responds to your letters of August 8 and 18, 1995, 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 regional police commissioner when her spouse is a corporal in the regional police force. Facts: You are the solicitor for the Pocono Mountain Regional Police Commission. One of the six Commissioners, Kelly Cook (formerly Biddle), was appointed by Tobyhanna Township to act as its representative on the Pocono Mountain Regional Police Commission. The Regional Police Commission serves Mount Pocono Borough, Tobyhanna Township and Tunkhannock Township in providing law enforcement in the three municipalities. Ms. Cook seeks advice regarding any limitations on her duties as a Regional Police Commission member due to her recent marriage to a sergeant on the Pocono Mountain Police force. Ms. Cook makes this request because of public criticism of her serving on the Commission given her recent marriage. Ms. Cook has been advised not to participate in any discussions in negotiations involving compensation of police force members. A photocopy of the Regional Police Agreement which provides statutory authority for its creation has been supplied and is incorporated by reference. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the Quigley, Esquire, Peter J., 95 -603 October 4, 1995 Page 2 requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. § §407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Pocono Mountain Regional Police Commissioner, Ms. Cook is a public official as that term is defined under the Ethics Law, and hence she is 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. Quigley, Esquire, Peter J., 95 -=E— October 4, 1995 Page 3 "Immediate family." A parent, spouse, child, brother or sister. 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 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 under 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 Quigley, Esquire, Peter J., 95-603 October 4, 1995 Page 4 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 submitted facts to Section 3(a) of the Ethics Law, there is no prohibition as to Ms. Cook serving as member of the Pocono Mountain Regional Police Commission while her spouse is a Corporal on the police force. However, since Ms. Cook's spouse is a member of her "immediate family" as that term is defined under the Ethics Law, Ms. Cook would have a conflict in matters involving her spouse such as discipline, promotions, termination, furlough, etc. In addition, Ms. Cook could not participate in matters such as contract negotiations regarding compensation or benefits. Van Rensler, Opinion 90 -017. However, Ms. Cook would not be precluded from voting on the final ratification of such a contract provided the class /subclass of employees was more than one person and provided Ms. Cook's spouse was not treated any differently than any other member of that subclass. Davis, Opinion 89 -012. 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. Conclusion: As a Pocono Mountain Regional Police Commissioner, Ms. Cook is a public official subject to the provisions of the Ethics Law. Subject to the qualifications and limitations noted above, Section 3 (a) of the Ethics Law would not prohibit Ms. Cook from serving as a public official while her husband is a Corporal on the police force. 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Quigley, Esquire, Peter J., 95-603 October 4, 1995 Page 5 Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa .Code 113.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. incerely, Vincent J. Dopko Chief Counsel