Loading...
HomeMy WebLinkAbout02-529 HiesterBrian D. Hiester Chief of Police Township of Cumru 1775 Welsh Road Mohnton, PA 19540 ADVICE OF COUNSEL March 5, 2002 02 -529 Re: Conflict; Public Official /Employee; Township; Chief of Police; Private Employment or Business Opportunity; Service Provider; Business Relationship Between Chief of Police and Service Provider; Accreditation Assessment Services. Dear Chief Hiester: This responds to your letter of January 30, 2002, 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: (1) a township with regard to recommending a service provider to other municipalities in return for a cost reduction by the service provider; or (2) a township chief of police with regard to being paid for participating in the accreditation process of other police departments or assisting a service provider as to other services. Facts: As Chief of Police for Cumru Township ( "Township "), you seek an advisory from the State Ethics Commission. You have submitted facts which may be fairly summarized as follows. The Township and its police department use the services of "Abilities Education Technologies" (AET). The services provided by AET include various professional human resource /personnel services and police department accreditation assistance. The first question that you pose is whether it would be permissible under the Ethics Act for the Township to recommend AET's services to other municipalities in exchange for a reduction by AET of the cost of the services it provides to the Township /police department. The remainder of your inquiry pertains to your prospective provision of services for compensation. You state that under the Pennsylvania Chiefs of Police Association's "Pennsylvania Law Enforcement Accreditation Program," the police department accreditation process requires police departments to conduct a "mock" assessment. Hiester, 02 -529 March 5, 2002 Page 2 The mock assessment is typically conducted on -site by one or more Pennsylvania police officers, typically chiefs. You ask whether, pursuant to the Ethics Act, you could be paid personally for time spent assisting other police departments in mock or final accreditation visits. You further ask whether, pursuant to the Ethics Act, you could be paid personally for assisting AET in other services. 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 Cumru Township, you are a public official 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, Hiester, 02 -529 March 5, 2002 Page 3 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 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. 65 Pa.C.S. §§ 1103(b), (c). 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. Hiester, 02 -529 March 5, 2002 Page 4 In applying the above provisions of the Ethics Act to your inquiry, you are advised that Section 1103(a) of the Ethics Act does not generally prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may employee use the authority of his public position or confidential information obtained by being in that position for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89- 011. 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, Freind, 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. If a business with which the public official /public employee is associated or its client(s) would have matter(s) pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter(s). Miller, Opinion No. 89 -024; see also, Kannebecker, Opinion 92 -010. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j) set forth above. Having established the above general principles, your questions shall now be considered. The first question that you pose is whether it would be permissible under the Ethics Act for the Township to recommend AET's services to other municipalities in exchange for a reduction by AET of the cost of the services it provides to the Township /police department. However, you do not have standing to submit an inquiry on behalf of the Township, and so your first question may not be addressed. 65 Pa.C.S. §§ 1107(10), (11). It is generally noted that the State Ethics Commission's jurisdiction under the Ethics Act is primarily limited to public officials, public employees, candidates, and nominees, rather than governmental bodies. See, Confidential Opinion 96 -001 at 5. Your second question is whether, pursuant to the Ethics Act, you could be paid personally for time spent assisting other police departments in mock or final accreditation visits. Under the facts which you have submitted, the accreditation process requires that such assessments be conducted by one or more Pennsylvania police officers, typically chiefs. Thus, it would appear that "but for" your public position as Chief of Police for the Township, you would not be qualified to perform the assessment services. You are advised that pursuant to Section 1103(a) of the Ethics Act, you could not be paid personally for such services to the extent your ability to provide such services would depend upon your status as Chief of Police. To that extent, the compensation that you would receive would constitute a private pecuniary benefit received from a use of the authority of your public position in contravention of Section 1103(a). Of course, the Ethics Act would not prohibit the provision of compensation directly to the Township for your services. Finally, you ask whether, pursuant to the Ethics Act, you could be paid personally for assisting AET in other services. As noted above, Section 1103(a) of the Ethics Act would not generally prohibit a public official /public employee from having outside business activities or employment. Therefore, conditioned upon the assumption that your public position would not be a prerequisite for performing the unidentified "other services," Section 1103(a) of the Hiester, 02 -529 March 5, 2002 Page 5 Ethics Act would not prohibit you from providing them for compensation. However, you could not use the authority of your public position or confidential information obtained by being in that position for the advancement of your own private pecuniary benefit or that of AET. Pancoe, supra. In applying the examples noted above of conduct that would be prohibited under Section 1103(a), you could not p ursue a private business opportunity with AET in the course of performing your public duties as Chief of Police. See, Metrick, supra. You could not use governmental personnel or governmental facilities, such as governmental telephones, postage, equipment, research materials, or other property to conduct private business activities. See, Freind, supra; Pancoe, supra. Additionally, you could not participate in an official capacity as to matters involving AET, such as the review /selection of its bids or proposals. Gorman, supra. If AET would have matter(s) pending before the Township or its police department, you would have a conflict of interest as to such matter(s). Miller, supra; see also, Kannebecker, supra. In each instance of a conflict of interest, you would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j) set forth above. Where a conflict would exist under the above factors, such that you as the Township's Chief of Police would be prohibited from having any involvement whatsoever as to AET and would be required to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act, the situation could prove further problematic to the extent any person acting in your stead would be your subordinate in the Township Police Department. 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 Township Code. Conclusion: As Chief of Police for Cumru Township ( "Township "), you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Pursuant to Section 1103(a) of the Ethics Act, you could not be paid personally for time spent assisting other police departments in mock or final accreditation visits to the extent your ability to provide such services would depend upon your status as Chief of Police. Conditioned upon the assumption that your public position would not be a prerequisite for performing other unidentified services to assist a service provider, "Abilities Education Technologies" (AET), Section 1103(a) of the Ethics Act would not prohibit you from providing such services for compensation, subject to the conditions, restrictions, and qualifications noted above. In each instance of a conflict of interest, you would be required to abstain from participation and to satisfy the disclosure requirements of Section 1103(j) set forth above. Where a conflict would exist under the above factors, such that you as the Township's Chief of Police would be prohibited from having any involvement whatsoever as to AET and would be required to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act, the situation could prove further problematic to the extent any person acting in your stead would be your subordinate in the Township Police Department. 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. Hiester, 02 -529 March 5, 2002 Page 6 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