HomeMy WebLinkAbout95-631 BerthelsenChief Jay M. Berthelsen
Mahoning Township Police
1201 Bloom Road
Danville, PA 17821
Dear Chief Berthelsen:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
December 21, 1995
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.
95 -631
Re: Simultaneous Service, Chief of Police, School Board Member,
Township.
This responds to your letter of November 17, 1995, 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 township police
chief from also serving as a member of the school board.
Facts: You are the Chief of Police for Mahoning Township,
Montour County. You reside in Riverside Borough, Northumberland
County, Pennsylvania. Your place of business and residence are
both within the Danville Area School District. As of December 5,
1995, a member of the School Board will have resigned, leaving a
vacancy on the Board. You are interested in filling that vacancy
and are inquiring as to any conflict of interest that may result
because of your position as Chief of Police.
Discussl.on: As Chief of Police for Mahoning Township, you are a
"public employee" as that term is defined in the Ethics Law and
hence you are subject to the provisions of the Ethics Law. 65 P.S.
§402; 51 Pa. Code §11.1.
Berthelsen, 95 -631
December 21, 1995
Page 2
The following terms are defined under the Ethics Law:
Section 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
any thing of monetary value and no public official /employee shall
solicit or accept any thing of monetary value based upon the
understanding that the vote, official action, or judgment 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 you were to serve both as a public
official /employee and as a member of the School Board. Basically,
the Ethics Law does not state that it is inherently incompatible
for a public official /employee to serve as a member of a school
board. 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 inherently
adverse. Smith Opinion, 89 -010. In the situation outlined above,
you would not be serving entities with interests which are
inherently adverse to each other.
$erthelsen, 95 -631
December 21, 1995
Page 3
Turning to the question of conflict of interest, 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. Should a situation arise where the use of
authority of public office /employment or confidential information
received by holding the above public positions could result in a
prohibited private pecuniary benefit, a conflict of interest would
arise. In each instance of a conflict of interest, you would be
required to fully abstain and to publicly announce and disclose the
abstention and the reasons for same in a written memorandum filed
with 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 Law has not been considered in that they do not
involve an interpretation of the Ethics Law.
Conclusion: As Chief of Police for Mahoning Township, you are a
"public employee" 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 Chief
of Police and as a member of the School Board, subject to the
restrictions, conditions and qualifications set forth above.
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 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 Commission.
Berthelsen, 95 -631
December 21, 1995
Page 4
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
§13.2(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.
erely,
V cent Do ko
Chief Cou sel