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HomeMy WebLinkAbout99-615 SnyderJack C. Snyder 102 Mogan Ave. Elkland, PA 16920 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 6, 1999 99 -615 Re: Conflict; Public Official /Public Employee; Borough; Council Member; Borough Police; Simultaneous Service; Union; Contract. Dear Sgt. Snyder: This responds to your letter of August 25, 1999, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") presents any prohibition or restrictions upon a borough police sergeant, if elected to council, regarding participation in matters involving the borough police. Facts: You are employed by Elkland Borough as a Sergeant for its Police Department, a two man police force. You intend to run for a seat on the Borough Council in the November election. You have been told that as a member of Borough Council and the Police Union, you will not be able to vote on police business including the new three year police union contract. You state that you will abstain from voting on such matters. You ask for an advisory regarding the above. Discussion: If you were elected Borough Council Member, you would be a "public official" as that term is defined in the Ethics Act and hence you would be subject to the provisions of the Ethics Act. 65 Pa.C.S. §1102; 51 Pa. Code § 1 1.1. Sections 1 103(a) and 1 103(j) of the Ethics Act provide: Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict. - -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Snyder, 99 -615 October 6, 1999 - Page 2 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 governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§1103(a), (j). The following terms that pertain to conflicts of interest under the Ethics Act are defined as follows: Section 1102. 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. The term 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. 65 Pa.C.S. §1102. In applying the above provisions of the Ethics Act to the question of whether you, if elected to Borough Council, would be permitted to simultaneously serve as Snyder, 99 -615 October 6, 19 99 - Page 3 Sergeant for the Police Department, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa.Const. Art. 6, §2. A conflict of interest exists under the Ethics Act where a pecuniary benefit or financial gain results from holding incompatible positions simultaneously. The Commission has determined that if a particular statutory enactment prohibits an official from receiving a particular pecuniary benefit or financial gain, then that official's receipt of same, through the authority of public office, is unauthorized in law and therefore, contrary to Section 1103(a) of the Ethics Act. In this case, in order to determine whether simultaneous service in the positions in question is precluded, the Borough Code, 53 P.S. §45101 at seq., ( "Code ") must be reviewed. Appointments; incompatible offices Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau or other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointments thereunder, but no mayor or councilman shall receive compensation therefor. No elected borough official of a borough with a population of 3,000 or more may serve as an employe of that borough. Where there is no incompatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer. . Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. 53 P.S. §46104. Pursuant to Section 46104 of the Code, if a Council member were to accept compensation not authorized in law for performing certain duties, such compensation would be considered a private pecuniary benefit contrary to Section 1103(a) of the Ethics Act. In Boroughs having a population of 3,000 or more, Section 1 103(a) would prohibit a Council member from also serving as a Borough employee. You have not submitted information as to the population of Elkland Borough. Nonetheless, assuming its population is less than 3,000, no prohibition as to Borough employment would exist under the Code and therefore, if you were elected to Council, you could also be employed as Sergeant for the Police Department under Section 1 103(a) of the Ethics Act. Turning to your specific question as to whether you would be permitted to vote on police business, in particular, the new three year police union contract, you are advised that pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such 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. The Commission, in Van Rensler, Opinion No. 017, applied Section 1 103(a) in addressing an issue similar to the one posed above. The issue in Van Rensler was Snyder, 99 -615 October 6, 1999 - Page 4 whether the Ethics Law would prohibit school directors, whose members of their immediate family were school district employees represented by bargaining units, from participating on a negotiating team and voting on a collective bargaining agreement. The Commission held that the Ethics Law would not restrict the school directors from voting on the finalized agreement, but would preclude their participation in negotiations leading up to the finalized agreement. The Commission explained that the school directors could vote on the finalized agreement because of the exclusion in the definition of "conflict" which applies if the immediate family member is a member of a subclass consisting of an industry, occupation or other group containing more than one member and the immediate family member is affected to the same degree as all the other members of the subclass. The Commission stated that as long as the two prerequisites for applying the exclusion were met, the school directors could vote on the final collective bargaining agreement. The Commission's holding that the Ethics Law would preclude the school directors from participating in negotiations was based on its reasoning that "by being part of the negotiating team which is part of their public position, the school directors would be necessarily privy to confidential information concerning the bargaining units of which their family members are parts." Van Rensler, at 4. Applying Van Rensler first to the question of whether you may participate in matters involving police business, an initial determination must be made as to whether the class /subclass exclusion to applies. In order for that exclusion to apply, you must be in a class /subclass consisting of more than one person and be affected to the same degree as the other members of the class /subclass. You state that the Elkland Borough Police Department is a two man police force. Thus, in a matter coming before Council which would financially impact both you and the other police officer, such as an increase in your salaries to the same degree, the class /subclass exception to the definition of conflict of interest would apply, and you would not be precluded from voting on such matter. On the issue of whether you may participate or vote on the three year police union contract, if the class /subclass exclusion would apply, the Ethics Act would not prohibit you from voting on the finalized contract. However, you would be precluded from participating in the negotiations leading to such finalized agreement or receiving confidential information regarding same because of the possibility of your influence in Council's decision as to the direction and outcome of the negotiation process. See, Van Rensler, supra. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: If elected as a Council member for Elkland Borough, you would be a "public official" subject to the provisions of the Ethics Act. You may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Sergeant and Council Member, subject to the restrictions, conditions and qualifications set forth above. In matters before the Borough which would financially impact you and the other police officer to the exact same degree, the class /subclass exception to the definition of conflict of interest would apply, and you would be permitted to participate in such matters. As for matters involving the three year police union contract, you would be permitted, based on Van Rensler, to vote on the ratification of Snyder, 99 -615 October 6, 1999 - Page 5 the contract, but would be precluded from participating in the negotiations leading to the finalized contract or receiving confidential information regarding same. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1 107(1 1), an 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, provided 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. erely, r Vincent .J: Dopko Chief Counsel