HomeMy WebLinkAbout01-581 McCarthyAlbert J. McCarthy
Chief of Police
Kennett Square Police Department
115 North Broad Street
P. O. Box 5
Kennett Square, PA 19348
Dear Chief McCarthy:
ADVICE OF COUNSEL
August 1, 2001
01 -581
Re: Conflict; Public Official /Employee; Borough; Chief of Police; Member; Church
Development Committee; Zoning Variance Submitted by Church.
This responds to your letter of June 27, 2001, by which you requested advice from
the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. §1101 et seq., presents any prohibition or restrictions upon a borough chief of
police as to participating in development plans submitted by a church, when the chief of
police is a member of the church's development committee, which is in charge of the
development plans.
Facts: You serve as Police Chief for the Borough of Kennett Square. You also
serve on the Development Committee for St. Patrick Church, of which you have been a
member for most of your life.
The Church is presently engaged in acquiring surrounding property for future
expansion. The expansion project may involve tearing down surrounding buildings and
submitting a development plan to the Borough. The Borough may have to consider
whether the buildings should be torn down given their historic nature. As Police Chief,
you may have to review traffic plans submitted by traffic engineers concerning traffic
development.
At the present time, the Church has submitted an application for a zoning variance
to use one of the buildings it has acquired as an early learning center. You state that you
will not be called upon to attend the hearing to consider the zoning variance, but based
upon the Church's need to expand, the issues between the Church and the Borough will
be ongoing for at least five years.
McCarthy, 01 -581
August 1, 2001
Page 2
You ask whether you would have a conflict of interest given your positions as a
member of the Development Committee and Police Chief.
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, 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), (11). An advisory only affords a
defense to the extent the requestor has truthfully disclosed all of the material facts.
As Chief of Police for the Borough of Kennett Square, you are a public employee
as that term is defined in the Ethics Act, and hence you are subject to the provisions of
that 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 performance of duties and responsibilities unique to a
particular public office or position of public employment.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self - employed individual, holding company, joint
stock company, receivership, trust or any legal entity
organized for profit.
"Business with which he is associated." Any
business in which the person or a member of the person's
McCarthy, 01 -581
August 1, 2001
Page 3
immediate family is a director, officer, owner, employee or has
a financial interest.
65 Pa.C.S. §1102.
In addition, Sections 1103(b) and 1103(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 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).
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 instant matter, 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
McCarthy, 01 -581
August 1, 2001
Page 4
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
In that your participation as the Borough Police Chief in the Church's development
plans would not result in a financial gain to you, a member of your immediate family or a
business with which you or a member of your immediate family is associated, you would
not have a conflict as to such plans.
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. Specifically not addressed herein is the applicability of
the respective municipal code.
Conclusion: As Chief of Police for the Borough of Kennett Square, you are a
public employee subject to the provisions of the Public Official and Employee Ethics Act
("Ethics Act "), 65 Pa.C.S. §1101 et seq. In that your participation as the Borough Police
Chief in the Church's development plans would not result in a financial gain to you, a
member of your immediate family or a business with which you or a member of your
immediate family is associated, you would not have a conflict as such lans. 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 §13.20. 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