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HomeMy WebLinkAbout99-640 ReynoldsBernard H. Reynolds 46 Ridge Avenue North Irwin, PA 15642 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL December 22, 1999 FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics @state.pa.us 99 -640 Re: Conflict; Simultaneous Service; Public Official /Employee; Council Member; Borough; Police; Street Supervisor; Constable; Vote. Dear Mr. Reynolds: This responds to your letter of November 15, 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 et eeq., presents any prohibition or restrictions upon a borough council member who is also the borough police chief, part -time borough street supervisor and borough constable as to voting on or participating in matters involving the borough police, borough police chief, borough street supervisor, and borough constable. Facts: For 67 years, you have been a resident of the Borough of North Irwin ( "Borough "), which has a population of 958. You have served as the part -time police officer for 42 years and the police chief for the last 3 years. You state, "I am also the part -time street supervisor for many years . . . I am also the elected constable for many years." You have been elected to serve a four -year term on the North Irwin Borough Council ( "Council ") beginning in January 2000. You believe that there will be times when conflicts will arise which will require you to abstain from voting. You request an advisory as to matters on which you can and cannot vote. 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. Reynolds, 99 -640 December 22, 1999 Page 2 As a Council Member for North Irwin Borough, you are a public official 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 1 103. 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. 65 Pa.C.S. §1102. "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. In addition, Sections 1 103(b) and 1 103(c) of the Ethics Act 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. Section 1 103(j) of the Ethics Act provides as follows: Section 1103. Restricted activities. (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 Reynolds, 99 -640 December 22, 1999 Page 3 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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the question of whether you, as a Member of the North Irwin Borough Council, would be permitted to simultaneously serve as a part -time police officer, police chief, part-time street supervisor, and constable, 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, is contrary to Section 1 103(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 Pa. Stat. Ann. §45101 et seq., ( "Code ") must be reviewed. Reynolds, 99 -640 December 22, 1999 Page 4 Section 46104 of the Code provides: 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 Pa. Stat. Ann. §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 1 103(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 state that the population of North Irwin Borough is 958. Therefore, it would appear that, for purposes of applying the Ethics Act to your circumstances, your receipt of compensation as a part -time police officer, police chief, part -time street supervisor, or constable would not be prohibited under Section 1103(a) of the Ethics Act. Turning to your specific question as to what matters you would and would not be permitted to vote on as a Council Member, you are advised that pursuant to Section 1 103(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 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. Generally speaking, Section 1 103(a) would restrict you from voting on matters coming before Borough Council that would result in a financial gain to you, such as voting to give the Police Chief a raise when you are the Police Chief. In such instances of a conflict of interest, you would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act set forth above. Having established the above principals, be advised that not only would Section 1 103(a) of the Ethics Act prohibit you from voting on matters resulting in a financial benefit to you, you would also be precluded from participating in discussions related to such matters. This is true because use of authority of office is more than the mere mechanics of voting. It encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes, for example, discussing, conferring with others, and lobbying for a particular benefit. Section 1103(a) would not preclude you from participating in matters that would financially impact you if you would fall within the exclusion to the statutory definition of "conflict of interest" known as the class /subclass exclusion. In order for Reynolds, 99 -640 December 22, 1999 Page 5 that exclusion to apply, you would have to be in class /subclass consisting of more than just one person and would have to be affected to the same degree as the other members of the class /subclass. For example, the Commission, in Van Rensler, Opinion No. 90 -017, applied the class /subclass exclusion in determining that a school director could vote on the final ratification of a collective bargaining agreement with the teachers even though his spouse was a teacher because his spouse would receive the same benefits as all other teachers under the contract. You state that you have been the Police Chief for the last 3 years. Under the limited facts which you have submitted, it would appear that there would be no others who would be similarly situated. Thus, in matters before the Borough that would have a financial impact on you alone as the Police Chief, the class /subclass exception to the definition of conflict of interest would not apply, and you, as a public official, would have to abstain and observe the disclosure requirements under Section 1 103(j) of the Ethics Act. The same principal would hold true assuming that you alone would hold the positions of part -time Street Supervisor and Constable for the Borough. On the other hand, where a matter would come before Borough Council that would financially impact "all police officers" to the same degree, such as an across - the -board salary increase, and the Police Chief would be considered to be one of two or more police officers, the class /subclass exclusion to the definition of conflict of interest would apply, and you would not be precluded from voting on that matter. 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: As a Council Member for North Irwin Borough ( "Borough "), you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 gt agg. Subject to the restrictions and qualifications noted above, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Borough Council Member and part -time Police Officer, Police Chief, part -time Street Supervisor, and Constable for the Borough, which has a population of under 3,000. Assuming you are the only Police Chief, Street Supervisor, and Constable, the class /subclass exception to the definition of conflict of interest would not apply, and you, as a public official, would have a conflict of interest as to matters related to those positions that would result in a financial gain to you. In each instance of a conflict of interest, you would be required to abstain from participation and to fully satisfy the disclosure requirements of Section 1 103(j) as set forth above. On the other hand, where a matter would come before Borough Council that would financially impact "all police officers" to the same degree, such as an across - the -board salary increase, and the Police Chief would be considered to be one of two or more police officers, the class /subclass exclusion to the definition of conflict of interest would apply, and you would not be precluded from voting on or participating in that matter. 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. Reynolds, 99 -640 December 22, 1999 Page 6 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 '*-DSI Vincent J. opko Chief Counsel