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Home My WebLink About95-620 KetchemADVICE OF COUNSEL The Honorable H. William DeWeese The. Democratic Leader House of Representatives Harrisburg, PA 17120 -2020 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 November 30, 1995 No. 95 -620 Re: Conflict, Public Official /Employee, County, Sheriff, Sobriety Checkpoint Program, Program participation by Sheriff. Dear Representative DeWeese: This responds to your letter of November 6, 1995 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a county sheriff regarding his participation in the administration of a sobriety checkpoint program. Facts: You are writing on behalf of Dick Ketchem who is the Sheriff of Greene County. The Greene County - Waynesburg Borough Police Department has applied for a grant to administer sobriety checkpoints as part of a program with the Department of Transportation, Bureau of Highway Safety and Traffic Engineering. A copy of the Greene County Sobriety Checkpoint Program was enclosed with your correspondence and is incorporated herein by reference. Sheriff Ketchem is interested in participating in this program but was advised by the Chief of Police that he cannot receive compensation for his participation because he is an elected official and is in a conflict of interest situation. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(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 P.S. § §407(10), (11). An peWeese, No. 95 -620 November 30, 1995 Page 2 advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As Sheriff for Greene County, Sheriff Ketchem would be considered a public official as that term is defined under the Ethics Law, and hence is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section � 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. "Conflict" or "conflict of interest" 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. In addition, Sections 3(b) and 3(c) of the Ethics Law 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 judgement of the peWeese No. 95 -620 November 30, 1995 Page 3 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 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) 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. If a conflict exists, Section 3(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. As to the instant matter, assuming factually that Sheriff Ketchem would not use the authority of office or any confidential information to obtain a private pecuniary benefit for himself, DeWeese, No. 95 -620 November 30, 1995 Page 4 Section 3(a) of the Ethics Law would not prohibit Sheriff Ketchem from participating and receiving compensation as to the Sobriety Checkpoint Program. However, as to the County Code, which the State Ethics Commission has no jurisdiction to interpret, questions exist as to whether Sheriff Ketchem may receive such compensation: §11011 -12. Limitations on Payments (a) The county officers shall be paid only the salary provided herein for services performed for the county or any other governmental unit: Provided, however, That this restriction shall not apply to those county officers receiving a salary as executive and administrative officers of institution districts existing in their counties. 16 P.S. §11011 -12. (Repealed in part by Act 71 of 1986). In addition and for the same reason, the provisions of the Pennsylvania Constitution which restrict increases in the salaries of public officials during their terms in office is not addressed. It is recommended that Sheriff Ketchem contact his solicitor or private counsel for advice as to such other laws. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the County Code and Pennsylvania Constitution. Conclusion: As Sheriff for Greene County, Sheriff Ketchem is a public official subject to the provisions of the Ethics Law. Subject to the qualification noted above, Section 3(a) of the Ethics Law would not prohibit Sheriff Ketchem from participating and receiving compensation as to a county sobriety checkpoint program. Since questions exist as to whether such compensation is prohibited by the County Code or Pennsylvania Constitution, it is suggested that Sheriff Ketchem seek the advice of his solicitor or private counsel as to such other laws. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(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, providing 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. Deweese, No. 95 -620 November 30, 1995 Page 5 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. Chief Counsel