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Home My WebLink About99-628 AbrahamSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL November 10, 1999 Sergeant David Abraham Plains Township Police Dept. Municipal Building 126 North Main Street 99 -628 Plains, PA 18705 Re: Conflict; Public Official /Employee; Police Sergeant; Township Police Department; Private Employment or Business; Sale of Police Cruiser Replicas. Dear Sergeant Abraham: This responds to your letter of October 8, 1999 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 gl seq., presents any prohibition or restrictions upon a township police sergeant as to replicating the township police cruiser for sale to township police officers and to any persons wishing to purchase the replicas. Facts: You are employed as a Police Sergeant with the Plains Township Police Department. You have submitted a copy of an organizational chart for the Police Department, which document is incorporated herein by reference. Your position involves routine patrol activities and supervising subordinate officers. The Plains Township Police Department currently has 15 full -time officers. Plains Township has approximately 12,000 residents and includes 15 square miles. You have asked a Florida -based company to make die -cast replicas of the Plains Township police cruiser. You would like to sell these replicas to the officers and to anyone else who wishes to purchase them. The cost of making each replica is that approximately you could sell 20-60 cars, and note l that if replicas ou sod 60 cars, you would only estimate m make that y c a profit in the amount of $180.00. You state that there are several police departments throughout the United States that have replicated their cruisers. You further state and represent to the Commission that any citizen can lawfully photograph and replicate the Plains Township police cruiser. You also state that the Police Department's shoulder patch is not copyrighted. You request an advisory as to whether the Ethics Act would restrict or prohibit your intended s a Department of e r replicas a Revenue a profit. for You note. that you have also contacted the Pennsylvania .� :,.. es+, +o no I IQ • P -mail: ethics @state.pa.us Abraham, 99 -628 November 10, 1999 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), 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 Pa.C.S. §§1107(10), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Police Sergeant for the Plains Township Police Department, you are a public employee as that term is defined in the Ethics Act, and hence you are subject to the provisions of that Act. Section 1 103(a) of the Ethics Act provides: Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The following terms are defined in the Ethics Act 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. Section 1103(j) of the Ethics Act provides as follows: Section 1 103. Restricted activities. Abraham, 99 -628 November 10, 1999 Page 3 (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 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(j). In each instance of a conflict, Section 1103(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. In applying the above provisions of the Ethics Act to your inquiry, you are advised that Section 1 103(a) of the Ethics Act does not prohibit public officials /public employees from having outside business activities or employment; however, the 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 1103(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 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. If the private employer or business with which the public official /public employee is associated would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Miller, Opinion No. 89 -024. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j). Abraham, 99 -628 November 10, 1999 Page 4 In applying the above provisions to the facts which you have submitted, Section 1103(a) of the Ethics Act would not preclude you from replicating the Township police cruiser and offering the replicas for sale, subject to the restrictions, conditions, and qualifications noted above, and further conditioned upon the assumption that in so doing, you would in fact not be using the authority of your position as Police Sergeant or any confidential information to which you would have access by being in said position. 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. Specifically not addressed herein is the applicability of the respective municipal code. Conclusion: As a Police Sergeant for the Plains Township Police Department, you are a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 gii ,fig. Under the facts which you have submitted, Section 1103(a) of the Ethics Act would not preclude you from replicating the Township police cruiser and offering the replicas for sale, for a profit, subject to the restrictions, conditions, and qualifications noted above. Lastly, the propriety of the proposed 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. Sincerely, incent J. opko Chief Counsel