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HomeMy WebLinkAbout02-540 SorianoRandy Soriano Executive Secretary Borough of Fountain Hill 941 Long Street Fountain Hill, PA 18015 -2660 Dear Mr. Soriano: ADVICE OF COUNSEL March 25, 2002 02 -540 Re: Conflict; Public Official /Employee; Appointment to Borough Civil Service Commission; Police Officer Employed By Another Municipality. This responds to your letter of February 8, 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 a member of a borough civil service commission who is employed as a police officer by another municipality. Facts: As Executive Secretary of the Borough of Fountain Hill ( "Borough "), you have been authorized by majority action of the Borough Council Members to seek an advisory as to the following. The resignation of a member of the Borough of Fountain Hill Civil Service Commission ( "Civil Service Commission ") has created a vacancy which you state must be filled by Borough Council pursuant to Sections 1172 and 1173 of the Borough Code. Borough Council has received letters from two qualified Borough electors ( "Applicants ") expressing interest in filling the vacancy. Both Applicants are employed by the City of Bethlehem as police officers. You have submitted copies of the Applicants' letters, which are incorporated herein by reference. You state that the Borough Solicitor has issued a legal opinion regarding whether an applicant who is employed as a police officer for another municipality may be appointed to the Civil Service Commission. You have submitted a copy of the Solicitor's opinion, which is incorporated herein by reference. You have also submitted a copy of the Borough of Fountain Hill Civil Service Commission Rules and Regulations, as amended to February 6, 1997 ( "Rules and Regulations "), which is also incorporated herein by reference. The Rules and Regulations provide in pertinent part as follows: Soriano, 02 -540 March 25, 2002 Page 2 201. Civil Service Commission. The commission shall consist of three commissioners who shall be qualified electors of the Borough and shall be appointed by the Borough Council initially to serve for the terms of two, four and six years, and as terms thereafter expire shall be appointed for terms of six years. Any vacancy occurring in the commission for any reason whatsoever shall be filled by the Borough Council for the unexpired term within the period of thirty (30) days after such vacancy occurs... . No civil service commissioner shall receive compensation. 202. Offices Incompatible with Civil Service Commissioner. No commissioner shall at the same time hold an elective or appointed office under the United States government, the Commonwealth of Pennsylvania or any political subdivision of the Commonwealth, except that one member of the commission may be a member of the Council of the Borough and one commissioner may be a member of the teaching profession. Rules and Regulations, § § 201; 202. You ask whether the appointment of a police officer employed by another municipality to the Civil Service Commission creates a conflict of interest under the Ethics Act. 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. Upon appointment to the Borough of Fountain Hill Civil Service Commission ( "Civil Service Commission "), a police officer who is employed by another municipality would become a public official as that term is defined in the Ethics Act, and hence, the police officer would be 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 Soriano, 02 -540 March 25, 2002 Page 3 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. "Immediate family." A parent, spouse, child, brother or sister. "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 immediate family is a director, officer, owner, employee or has a financial interest. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 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 Soriano, 02 -540 March 25, 2002 Page 4 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 employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The Ethics Act would not prohibit a police officer who is employed by another municipality from serving on the Civil Service Commission; however, he would have a conflict as to any matter that would come before him in his capacity as a Civil Service Commissioner that would result in a financial gain to himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. In each instance of a conflict, the Civil Service Commissioner would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act. 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: Upon appointment to the Borough of Fountain Hill Civil Service Commission ( "Civil Service Commission "), a police officer who is employed by another municipality 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. The Ethics Act would not prohibit a police officer who is employed by another municipality from serving on the Civil Service Commission; however, he would have a conflict as to any matter that would come before him in his capacity as a Civil Service Commissioner that would Soriano, 02 -540 March 25, 2002 Page 5 result in a financial gain to himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. In each instance of a conflict, the Civil Service Commissioner would be required to abstain 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