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HomeMy WebLinkAbout00-008 RileyOPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Julius Uehlein John J. Bolger Frank M. Brown Susan Mosites Bicket DATE DECIDED: September 21, 2000 DATE MAILED: October 5, 2000 00 -008 Shawn D. Riley, Sr. Warrant Enforcement Bureau Administrator District Attorney's Office of Chester County 17 North Church Street, Suite 218 Post Office Box 2748 West Chester, PA 19380 -0991 Re: Conflict, Public Official /Employee, County, Warrant Enforcement Bureau Administrator, District Attorney's Office, Deputy Constable, Use of Authority of Office, Conflict, Pecuniary Benefit. Dear Mr. Riley: This Opinion is issued in response to your advisory request of July 19, 2000. I. ISSUE: Whether, under the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq., a county warrant enforcement bureau administrator who, by virtue of his public employment, has direct access to information pertaining to all outstanding warrants in that county, may, during his off -duty hours, serve those county warrants as a deputy constable and receive compensation in accordance with the county fee bill. II. FACTUAL BASIS FOR DETERMINATION: You are the Warrant Enforcement Bureau Administrator in the Chester County District Attorney's Office. The Warrant Enforcement Bureau ( "Bureau ") is in charge of all outstanding warrants issued by the seventeen District Courts in Chester County and the Chester County Court of Common Pleas. The Bureau maintains a computer system that the County Radio Room, local police departments, prison and public can access. The Bureau provides information to Chester County constables regarding warrants Riley, 00 -008 October 5, 2000 Page 2 that they hold, and performs employment and welfare searches to enable constables to apprehend defendants. A Chester County constable, however, cannot access such employment and welfare records on his own. Rather, the constable must first submit a request for such information to the Bureau by providing the name of an individual to the Bureau, and the Bureau will then perform a search and provide any information pertaining to that individual to the constable. The Bureau also conducts information searches on fugitives without a request and gives any information regarding those fugitives to the constables holding the warrants or to any other constables who may be interested in serving those warrants. In addition to your position as the Bureau Administrator, you are a deputy constable in Delaware County where you reside. As a deputy constable, you serve warrants and process civil papers. You now would like to serve Chester County District Court warrants when you are not working at the Bureau. However, the Chester County District Attorney is concerned that you may have a conflict because as the Warrant Enforcement Bureau Administrator, you have direct access to all Chester County outstanding warrants while other constables do not. The District Attorney believes that your ability to retrieve information first hand gives you an advantage over other constables because you can go out and serve the warrants before anyone else and earn more money as a deputy constable. Based upon the foregoing facts, you ask whether, given your capacity as the Chester County Warrant Enforcement Bureau Administrator, you would have a conflict of interest in serving Chester County warrants as a deputy constable during your off -duty hours, for compensation in accordance with the County fee bill. At the public meeting on September 21, 2000, you appeared and offered the following additional information. When a district court in Chester County issues a warrant, it provides a copy of the warrant to the constable who works out of that particular district court office. The district court then sends a certified copy of the warrant along with information identifying the constable assigned to the warrant to the Bureau. Some district courts do not assign warrants to any constable. Such "unassigned" warrants may be served by any constable who happens to come across the individual named in the warrant. You state that there are approximately 35,000 outstanding warrants in Chester County. Of those 35,000 warrants, 12,000 are unassigned and pertain to individuals who live outside of Chester County. A Chester County constable generally will not pursue an unassigned warrant because service will require an out -of- county search. If the search for the individual is unsuccessful, the constable will not get paid. You add that there are approximately 2,000 bench warrants issued by the Court of Common Pleas as well as 21,309 traffic warrants. You state that Chester County constables do not pursue traffic warrants as a high priority because they do not want to waste their time conducting out -of- county searches that could very well prove unsuccessful. Instead, constables tend to concentrate on criminal warrants and bench warrants. In this regard, you admit that as the Warrant Enforcement Bureau Administrator, you would be in a position to choose the more lucrative warrants before any other constable. You argue, however, that you would only be pursuing unassigned warrants. You add that because a constable's fee is based upon a fee bill established by the State and passed down to the County and is not dependent upon the amount of the fine, it is not more advantageous for you to pursue a criminal warrant rather than a traffic warrant. You maintain that Chester County constables have access to the same information to which you have access as the Warrant Enforcement Bureau Administrator. However, you concede that your ability to directly retrieve information from the Bureau's computer system Riley, 00 -008 October 5, 2000 Page 3 gives you a "slight advantage" over Chester County constables who must first submit a request for information to the Bureau. You feel that the advantage you have is "slight" because the warrants that you wish to pursue, the unassigned warrants, are largely ignored by other constables in the first place. You do not expect to make an enormous amount of money pursuing unassigned warrants. However, you would be content to make some extra money to help pay for your children's education. You state that your intent is to utilize the resources that are available to you at the Bureau during the day to serve the unassigned warrants at night. III. DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(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, this 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), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As the Warrant Enforcement Bureau Administrator in the Chester County District Attorney's Office, you are a "public employee" as that term is defined in the Ethics Act. Further, as a deputy constable, you are a "public official" as that term is defined in the Ethics Act. Hence, as a public official /public employee, you are subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 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: § 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 Riley, 00 -008 October 5, 2000 Page 4 performance of duties and responsibilities unique to a particular public office or position of public employment. Section 1103(j) of the Ethics Act provides as follows: § 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 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). If a conflict exists, Section 1103(j) requires the public official /public 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 the facts which you have submitted, 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 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. 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, Friend, 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. As a general rule, the Ethics Act was not enacted nor should it be interpreted to preclude a public official /employee from receiving a benefit that is otherwise available to him as a citizen. However, concerns may arise under the Ethics Act if a public official /public employee receives a pecuniary benefit from or through the governmental body that he Riley, 00 -008 October 5, 2000 Page 5 serves. In the instant case, as the Warrant Enforcement Bureau Administrator, you control the release of certain information, such as employment and welfare information, that other constables cannot obtain independently. Further, unlike other constables, you have instant access to all Chester County outstanding warrants. Hence, by virtue of your public position, you have the ability to immediately access information that will give you an advantage in serving those warrants and receiving a pecuniary benefit. Because your position as the Warrant Enforcement Bureau Administrator would give you a financial advantage over other constables in serving Chester County warrants, you would have a conflict under Section 1103(a) of the Ethics Act and hence, could not serve Chester County warrants as a deputy constable for compensation. Of course, the Ethics Act would not preclude you from performing other work as a deputy constable in Chester County, absent some other basis for a conflict of interest. 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. IV. CONCLUSION: A county warrant enforcement bureau administrator is a "public employee" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "). A deputy constable is a "public official" subject to the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, a county warrant enforcement bureau administrator who, by virtue of his public employment, has direct and immediate access to information pertaining to all outstanding warrants in that county, would have a conflict of interest in serving that county's warrants as a deputy constable for compensation. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). By the Commission, Daneen E. Reese Chair