HomeMy WebLinkAbout01-586-CL CecconiKenneth B. Cecconi
255 Ellsworth Avenue
Homer City, PA 15748
Re: Simultaneous Service; Borough; Mayor; Council Member; Part -Time Police Sergeant;
Clarification of Advice; Advice of Counsel 01 -586.
Dear Mr. Cecconi:
ADVICE OF COUNSEL
December 11, 2001
01-586-CL
This responds to your letter of November 16, 2001, by which you requested clarification
of Cecconi, Advice 01 -586.
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 initially sought an advisory from the State Ethics Commission by letter
dated July 21, 2001. In response to your request, Cecconi, Advice 01 -586 was issued to you on
August 21, 2001, which Advice is incorporated herein by reference.
With regard to you question as to whether you could simultaneously serve in the positions
of Mayor of the Borough of Homer City ( "Borough ") and part —time police sergeant for the
Borough, Advice of Counsel 01 -586 stated:
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.
Cecconi, 01- 586 —CL
December 11, 2001
Page 2
Cecconi, Advice 01 -586 at 3.
You seek clarification as to whether the above conclusion would change if you would take
a leave of absence from the police department for the duration of the mayor's term assuming
you would choose to accept the position of Borough mayor.
Discussion: As noted in Cecconi, Advice 01 -586, 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. In that Cecconi, supra,
is incorporated herein by reference, the quotations and commentary as to the Ethics Act will not
be repeated.
With regard to the question you have posed, taking a leave of absence from your police
sergeant position during your term(s) as Mayor would not necessarily resolve the conflict issues
delineated above. For example, as Mayor, you would have a conflict and could not participate in
any matter that would financially benefit you upon your return as police sergeant. However,
conditioned upon the assumption that you would not participate in any such action as Mayor,
you could serve in both positions without transgressing the Ethics Act, as indicated in the base
Advice.
Lastly, the propriety of the proposed conduct has only been addressed under the Ethics
Act. Specifically not addressed herein is the applicability of the Borough Code.
Conclusion: 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. Taking
a leave of absence from your police sergeant position during your term(s) as Mayor would not
necessarily resolve the conflict issues delineated above. For example, as Mayor, you would
have a conflict and could not participate in any matter that would financially benefit you upon
your return as police sergeant. However, conditioned upon the assumption that you would not
participate in any such action as Mayor, you could serve in both positions without transgressing
the Ethics Act. 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