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HomeMy WebLinkAbout97-543 CowdenJames L. Cowden, Esquire Strokoff & Cowden, P.C. 132 State Street PO Box 11903 Harrisburg, PA 17108 Re: Conflict, Public Official, Member, Borough Council, Immediate Family, Son -in- Law, Borough Police Officer, Collective Bargaining Agreement, Vote. Dear Mr. Cowden: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 19, 1997 97 -543 This responds to your letter of February 14, 1997, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon a member of borough council with regard to the prospective consolidation of the Borough's police department with the police departments of neighboring municipalities when her son -in -law is a borough police officer. Facts: As Solicitor for the Borough of Highspire, Dauphin County, you request an advisory on behalf of Kay Sutch (Sutch), who is a Member and President of the Highspire Borough Council. Sutch is also the mother -in -law of a Borough police officer. In 1993 you wrote to this Commission regarding Sutch's participation as a Borough Council Member in setting Borough policy in police negotiations, contract ratification, and budgeting for the police department and received Advice of Counsel No. 93 -568. At that time, Sutch was not directly involved in any council committee having to do with the Police Department, such as the Police Contract Negotiating Committee. Recently, Sutch has been participating as the Borough's delegate to a committee of neighboring municipalities concerning the subject of police department consolidation. The municipalities have been working toward consolidating their police departments for purposes of better service and efficiency. Originally, three other municipalities and Highspire were involved in these discussions but at present there are only two other municipalities involved. These discussions have reached the point at which the three municipalities' police departments, all of which are represented by Cowden / Sutch, 97 -543 March 19, 1997 Page 2 collective bargaining agents, are discussing the creation of one collective bargaining agreement that would cover all three municipalities. This would also entail the certification of a union to represent the new police department serving all three municipalities. If any action is taken, Sutch would cast the vote of the Borough of Highspire as one of three members on the committee although the final decision on consolidation would be left to Borough Council. Because it has been almost four years since Advice of Counsel No. 93 -568 was issued, and because of Sutch's more direct role now as a member of the police consolidation committee, you request an advisory addressing these additional facts. Discussion: As a Member and President of the Highspire Borough Council, Sutch 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. "Immediate family." A parent, spouse, child, brother or sister. In applying the above provisions of the Ethics Law to the 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 Cowden /Sutch, 97 -543 March 19, 1997 Page 3 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. Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since Sutch and her son -in -law are not in a familial relationship delineated above, Section 3(a) of the Ethics Law would not prohibit Sutch from participating in matters relating to the police department consolidation. However, this Advice is conditioned upon the assumption that neither Kay Sutch nor any immediate family member, nor any business with which she or a member of her immediate family is associated, as defined in the Ethics Law, would receive a private pecuniary benefit from her proposed conduct. See, Baker, Opinion 89 -016. 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. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: As a Member and President of Highspire Borough Council, Kay Sutch is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict Sutch from participating in matters relating to the consolidation of the Borough's police department with the police departments of neighboring municipalities because Sutch's son -in -law, who is a Borough police officer, is not a member of her immediate family as that term is defined under the Ethics Law. This Advice is conditioned upon the assumption that neither Kay Sutch, nor any immediate family member, nor any business with which she or a member of her immediate family is associated, as defined in the Ethics Law, would receive a private pecuniary benefit from the proposed official conduct. 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. 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 1 Cowden /Sutch, 97 -543 March 19, 1997 Page 4 the Commission within thirty (30) days may result in the dismissal of the appeal. S» cerely, Vincent J. Dopko Chief Counsel