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HomeMy WebLinkAbout97-513 EvansSheriff Steven A. Evans Courthouse Towanda, PA 18848 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG. PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 29, 1997 97 -513 Re: Conflict, Public Official /Employee, County, Sheriff, District Attorney's Drug Task Force Program, Special Assistant County Detective, Compensation. Dear Sheriff Evans: This responds to your letters of December 17 and December 26, 1996 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 County Sheriff regarding his prospective appointment as a Special Assistant County Detective serving on the District Attorney's Drug Task Force. Facts: As Sheriff of Bradford County, you request an advisory regarding any prohibitions or restrictions under the Ethics Law as to your appointment to an additional position within the County. The Bradford County District Attorney has taken over the Attorney General's Drug Task Force activities in the County. The Sheriffs Department was a member of the former Drug Task Force and is planning on being involved with the District Attorney's Drug Task Force. The District Attorney has signed an agreement with the Attorney General's Office for funding and liability insurance coverage. The District Attorney will be appointing law enforcement officers to serve as Special Assistant County Detectives on the Drug Task Force. The funding for the Drug Task Force is from a specific drug fund paid to the District Attorney's Office by the Attorney General's Office exclusively for drug interdiction. You state that these are not County funds and are under the exclusive control of the District Attorney. Evans, 97 -513 January 29, 1997 Page 2 Your specific inquiries are as follows: 1. Whether you may, as an elected County Sheriff, be appointed by the District Attorney as a Special Assistant County Detective on the Drug Task Force; and 2. If so, whether you may be compensated at the rate of $10 per hour (same as other members) for that service. 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 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 Sheriff for Bradford County, you are a public official 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 Evans, 97 -513 January 29, 1997 Page 3 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 officiaVemployee 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 goveming body have cast opposing votes, the Evans, 97 -513 January 29, 1997 Page 4 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. As to the instant matter, assuming factually that you would not use the authority of office or any confidential information to obtain a private pecuniary benefit for yourself, Section 3(a) of the Ethics Law would not prohibit you from participating and receiving compensation as a Special Assistant County Detective. However, as to the County Code, which the State Ethics Commission has no jurisdiction to interpret, questions exist as to whether you may receive such compensation: §11011 -12. Limitations on Payments (a) The county officers shall be paid only the salary provided herein for services performed for the county or any other governmental unit: Provided, however, That this restriction shall not apply to those county officers receiving a salary as executive and administrative officers of institution districts existing in their counties. 16 P.S. §11011 -12. (Repealed in party by Act 71 of 1986). In addition and for the same reason, the provisions of the Pennsylvania Constitution which restrict increases in the salaries of public officials during their terms in office is not addressed. It is recommended that you contact your solicitor or private counsel for advice as to such other laws. 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 County Code and Pennsylvania Constitution. Conclusion: As Sheriff for Bradford County, you are a public official subject to the provisions of the Ethics Law. Subject to the qualification noted above, Section 3(a) of the Ethics Law would not prohibit you participating and receiving compensation as a Special Assistant County Detective. Since questions exist as to whether such compensation is prohibited by the County Code or Pennsylvania Constitution, it is suggested that you seek advice of your solicitor or private counsel as to such other laws. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Evans, 97 -513 January 29, 1997 Page 5 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. 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 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. 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. S'ncerely, Vincent J. iopk Chief Counsel