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HomeMy WebLinkAbout97-532 OConnorBrian M. O'Connor 1000 Market Street Bridgewater, PA 15009 Dear Mr. O'Connor: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 25, 1997 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 under the Ethics Law: 97 -532 Re: Simultaneous Service; Employee, Borough Police Department; Mayor; Borough Council Member. This responds to your letter of January 24, 1997, 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 an employee of a Borough Police Department from also serving as Mayor or Borough Council Member. Facts: As a 30 year veteran with a Borough Police Department, you seek an advisory as to whether you may run for the office of Mayor or Borough Council Member. The Borough has a population of 750. You state that the Police Department is not civil service, and that the Street Commissioner is presently serving as a Council Member. It is noted that the facts which you have submitted do not reveal what specific position you presently hold with the police department. Discussion: If you would be elected to either the office of Borough Mayor or Borough Council Member, you would in such position be a "public official" as that term is defined in the Ethics Law and hence you would be subject to the provisions of the Ethics Law. 65 P.S. §402; 51 Pa. Code §11.1. O'Connor, 97 -532 February 25, 1997 Page 2 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 solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment 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 addressing your inquiry, it is initially noted that there appears to be no statutorily declared incompatibility as to these positions. Turning to considerations 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. In each instance of a conflict of interest, the public official /public employee is required to fully abstain and to satisfy the disclosure requirements of Section 3(j) set forth above. As a Borough Council Member, conflicts would likely arise for you in matters involving the Police Department, but you would be able to function in the position. Serious concerns exist, however, as to the repeated and recurring conflicts of interest that would arise under the Ethics Law if you were to simultaneously serve as an employee of the Borough Police Department and as Mayor. If as Mayor you would be in charge of the Police Department while also serving as an employee of the Police Department, you would have so many recurring and ongoing conflicts of interest that as a practical matter, it would be difficult for you to function as Mayor. For example, as Mayor, you would have a conflict of interest in matters which would have a financial impact upon you as a Borough Police Department O'Connor, 97 -532 February 25, 1997 Page 3 employee. You would have a conflict of interest as to any individuals who may, within that Department, be your superiors. Thus, although there does not appear to be a statutorily declared incompatibility between the positions of Borough Mayor and Borough Police Department employee, the conflicts of interest that would arise repeatedly and routinely for you would severely impact upon your ability to function as Mayor. 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: If you would be elected to either the office of Borough Mayor or Borough Council Member, you would in such position be a "public official" subject to the provisions of the Ethics Law. Where the Borough's population is 750, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve as a Borough Police Department employee and as a Borough Council Member, subject to the restrictions, conditions and qualifications set forth above. There appears to be no statutorily declared incompatibility between the positions of Borough Police Department employee and Borough Mayor. However, conflicts of interest would occur so routinely and repeatedly as to severely impact upon your practical ability to function in the position of Mayor. 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. 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 forma/ 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. cerely, incent Dopko Chief Counsel