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HomeMy WebLinkAbout01-586 CecconiKenneth B. Cecconi 255 Ellsworth Avenue Homer City, PA 15748 Dear Mr. Cecconi: ADVICE OF COUNSEL August 21, 2001 01 -586 Re: Simultaneous Service; Borough; Mayor; Council Member; Part -Time Police Sergeant. This responds to your letter of July 21, 2001, 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 seq., would impose any prohibition or restrictions upon a borough mayor or council member with regard to simultaneously serving or being employed as a part -time police sergeant in the same borough. Facts: You seek an advisory from the State Ethics Commission regarding the propriety under the Ethics Act of your prospective simultaneous service as either the mayor or a council member of the Borough of Homer City ( "Borough ") and as a part -time sergeant employed by the Borough's police department. You state that during the primary elections in May 2001, you won both the Democratic and Republican nominations for mayor and one of four available seats on Borough Council. You have served as a part -time police officer for the past 23 years. You are currently employed as a part -time sergeant with the Borough's police department. The chain of command for the police department is as follows: (1) mayor, (2) lieutenant officer - in- charge, (3) full -time sergeant, (4) part -time sergeant (you), (5) corporal, and (6) three patrolmen, by seniority. As part -time sergeant, your duties include serving and protecting the approximately 1,800 residents of the Borough; enforcing Pennsylvania codes and statutes and Borough ordinances; coordinating training for all officers; and supervising the corporal and patrolmen. The police department is covered by a union contract which expires in December 2002. You note that there is no Borough ordinance prohibiting a Borough employee from serving as an elected official. You ask whether, pursuant to the Ethics Act, you may serve as either the Borough's mayor or as one of its council members while simultaneously serving as the part -time police sergeant for the Borough. Cecconi, 01 -586 August 21, 2001 Page 2 Discussion: Upon assuming office as either the mayor or as a council member for the Borough, you would become a "public official" subject to the provisions of the Ethics Act. 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 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 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 pertaining to conflicts of interest under the Ethics Act are defined 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 Cecconi, 01 -586 August 21, 2001 Page 3 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 simultaneous service, 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. There does not appear to be any statutorily - declared incompatibility precluding simultaneous service in the positions in question. Turning to the question of conflict of interest, 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, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Where simultaneous service would place the public official /public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict (See, Johnson, Opinion 86 -004). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official /public employee to function in the conflicting positions without running afoul of Section 1103(a). Absent a statutorily - declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position, but in each instance of a conflict of interest, the individual would be required to abstain and to satisfy the disclosure requirements of Section 1103(j) as set forth above. In this case, given that the Borough's population is less than 3,000 (see, 53 P.S. § 46104), you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of council member and part -time police sergeant for the Borough, subject to the restrictions, conditions and qualifications set forth herein. As a Borough council member, conflicts would likely arise for you in matters involving the Borough's police department, such as the police contract, but you would nevertheless be able to function in the position. In each instance of a conflict of interest, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) as set forth above. Serious concerns exist, however, as to the repeated and recurring conflicts of interest that would arise under the Ethics Act if you were to simultaneously serve as the Borough's mayor and part -time police sergeant. If, as Mayor, you would be in charge of the police department while also serving as an employee of the police department, you would have so many recurring and ongoing conflicts of interest that, as a practical matter, it would be difficult for you to function as Mayor. For example, as Mayor, you would generally have a conflict of interest in matters that would have a financial impact upon you as a police department employee. You would also have a conflict of interest as to the lieutenant officer -in- charge and the full -time sergeant of the police department, who are your superiors in your capacity as part -time police sergeant. Thus, although there does not appear to be a statutorily declared incompatibility between the positions of Borough mayor and Borough part -time police sergeant, the conflicts of interest that would repeatedly and routinely arise for you would severely impact upon your ability to function as Mayor. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Cecconi, 01 -586 August 21, 2001 Page 4 Conclusion: Upon assuming office as either the mayor or as a council member for the Borough of Homer City ( "Borough "), you would become a "public official" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Given that the Borough's population is less than 3,000, you may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Borough council member and Borough part -time police sergeant, subject to the restrictions, conditions and qualifications set forth above. Although there does not appear to be a statutorily declared incompatibility between the positions of Borough mayor and Borough part -time police sergeant, the conflicts of interest that would repeatedly and routinely arise for you would severely impact upon your ability to function as Mayor. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), this 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