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Home My WebLink About01-518 EmerickWayne E. Emerick 1776 Barefoot Road Alum Bank, PA 15521 ADVICE OF COUNSEL February 22, 2001 01 -518 Re: Public Employee; Borough; Police Officer; Office of District Justice; Candidate Dear Mr. Emerick: This responds to your letter dated January 19, 2001, by which you requested advice from the State Ethics Commission. Issue: Whether as a borough police officer, you are to be considered a "public employee" subject to the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. §1101 et seq., and, if so, whether you may run for the position of District Justice. Facts: You are a Police Officer for Everett Borough, Bedford County. You state that you live 22 miles from your place of employment. You wish to run for the Office of District Magistrate [Justice] that is located in the district in which you reside. You state that the district where you work is not the same district in which the Office of District Magistrate is located. You ask whether you would have a conflict of interest if you would run for the Office of District Magistrate while you would serve as Borough Police Officer. You state that you would resign from the Police Department if you would win the election. Discussion: The Ethics Act defines the term "public employee" as follows: $1102. Definitions. "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: 1 contracting or procurement; 2 administering or monitoring grants or subsidies; 3 planning or zoning; 4 inspecting, licensing, regulating or auditing any person; or Emerick, 01 -518 February 22, 2001 Page 2 (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. 65 Pa.C.S. §1102. The regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommen- dations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (1) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. Emerick, 01 -518 February 22, 2001 Page 3 (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary - treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code §11.1 (Emphasis added). In applying the definition of "public employee" and the related regulatory criteria to the functions of your position, the necessary conclusion is that in your capacity as a Police Officer for Everett Borough, you are not to be considered a "public employee" as that term is defined in the Ethics Act. The only provisions of the Ethics Act which apply to you are Sections 1103(b) and 1103(c) which apply to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. In that you, as a Borough Police Officer, are not to be considered a public employee, the Ethics Act would not impose any bar upon you from running for the Office of District Justice while you are a police officer. Emerick, 01 -518 February 22, 2001 Page 4 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: In your capacity as a Police Officer for Everett Borough, you are not to be considered a "public employee" as that term is defined by the Public Official and Employee Ethics Act ( "Ethics Act ") which would not impose any bar upon you from running for the Office of District Justice while you are a police officer. Sections 1103(b) and 1103(c) of the Ethics Act apply to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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, Vincent J. Dopko Chief Counsel