HomeMy WebLinkAbout98-610 MerwinChief James H. Merwin
New Bethlehem Police Department
210 Lafayette St.
New Bethlehem, PA 16242
Dear Chief Merwin:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
October 20, 1998
Re: Conflict; Public Official /Employee; Chief of Police; County Commissioner;
Seeking Office.
This responds to your letter of October 6, 1998 by 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 borough police chief in seeking office as a county
commissioner.
Facts: You are the Chief of the New Bethlehem Borough Police Department, as
well as the only full time officer in the Department. Your Police Department is not
under Civil Service.
You desire to run for election as County Commissioner and state that you would
resign as Chief of Police should you be elected.
Based upon the facts which you have submitted, you request an advisory from
the State Ethics Commission as to whether you would be required to resign as Chief
of Police prior to becoming a candidate for County Commissioner.
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 Chief of Police for New Bethlehem Borough Police Department, you are a
public employee as that term is defined in the Public Official and Employee Ethics Law
( "Ethics Law "), and hence you are subject to the provisions of that law.
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec@state.pa.us
98 -610
Merwin, 98 -610
October 20, 1998
Page 2
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.
In applying the above provisions of the Ethics Law to the instant matter,
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.
As to your specific inquiry, the Ethics Law would not bar you from seeking the
office of County Commissioner while you remain as police chief. However, a public
official /public employee may not use the authority of his public position — or
confidential information obtained by being in that position — for the advancement of
his own private pecuniary benefit or that of a business with which he is associated.
Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section
3(a) would include: (1) the pursuit of a private business opportunity in the course of
public action, Metrick, Order No. 1037; (2) the use of governmental facilities, such as
governmental telephones, postage, staff, equipment, research materials, or other
property, or the use of governmental personnel, to conduct private business or
primary /election campaign activities, Freind, Order No. 800; Pancoe, supra; and (3) the
participation in an official capacity as to matters involving the business with which the
public official /public employee is associated in his private capacity, such as the
review /selection of its bids or proposals, Gorman, Order No. 1041.
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
Merwin, 98 -610
October 20, 1998
Page 3
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 or County Code.
Conclusion: As Chief of Police for the New Bethlehem Borough Police
Department, you are a public employee subject to the provisions of the Ethics Law.
Subject to the qualifications noted above, the Ethics Law would not prohibit your
seeking the office of County Commissioner while you remain as Borough Police Chief.
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 the Commission within thirty (30) days
may result in the dismissal of the appeal.
rely,
incent J. Dopko
Chief Counsel