Loading...
HomeMy WebLinkAbout98-536 FantaskyCharles R. Rosamilia, Jr., Esquire Rosamilia and Brungard 241 W. Main St. Lock Haven, PA 17745 Dear Mr. Rosamilia: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783.1610 ADVICE OF COUNSEL March 31, 1998 98 -536 Re: Simultaneous Service, Conflict, Public Official /Employee, Borough Councilman, Council President, Officer in Charge, Borough Police Department. This responds to your letters of January 27, February 5, and March 27, 1998, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any prohibition or restrictions upon a Member and President of a Borough Council who also serves as the "Officer in Charge" of the Borough's Police Department. Facts: As Solicitor for the Borough of Renovo, you seek an advisory from the State Ethics Commission on behalf of Paul J. Fantasky (Fantasky). Fantasky is a Councilman for the Borough of Renovo. He is also the Officer in Charge of the Renovo Borough Police Department. At the Borough Council reorganizational meeting held January 5, 1998, Fantasky was elected Council President. You have submitted a memorandum from the Police Committee Chairperson which sets forth the following facts: 1) as Officer in Charge of the Renovo Police Department, Fantasky is a paid employee of the Borough, and in that capacity, he takes care of daily paperwork and routine patrol, checks on investigations, and the like; 2) the population of Renovo Borough is 1,526; and 3) Fantasky as a Member and President of Council does not vote on any police matters, but rather, abstains from voting. Noting that there have been no specific instances mentioned as constituting a conflict of interest, you state that your question is whether Fantasky's simultaneous service as Officer in Charge of the Borough Police Department and as the elected President of Council would constitute a conflict of interest per se. Rosamilia, 98 -536 March 31, 1998 Page 2 Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § 5407(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 advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Member and President of Borough Council for the Borough of Renovo, Paul J. Fantasky is a public official subject to the Public Official and Employe Ethics Law ( "Ethics 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 2. 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. 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 Rosamilia 98 -536 March 31, 1998 Page 3 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. In each instance of a conflict, 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. 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 Law, then voting is permissible provided the disclosure requirements noted above are followed. See, 1Vllakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Law to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, §2. It is noted that the Borough Code provides as follows: Appointments; incompatible offices Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board. commission. bureau or other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointments thereunder. but no mayor or councilman shall receive compensation therefor. No elected borough official of a borough with a population of 3.000 or more may serve as an employe of that borough Where there is no incompatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer. . . Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. 53 P.S. §46104. (Emphasis added.) Based upon the facts which have been submitted, the population of Renovo Borough is well under 3,000 and therefore, simultaneous service as a Council Member /President and as an employee of the Borough would not appear to be prohibited per se by the Borough Code. Rosamilia 98 -536 March 31, 1998 Page 4 Turning to the question of conflict of interest, pursuant to Section 3(ar of the Ethics Law, 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, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Where simultaneous service would place the public official /public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict (See, Johnson, Opinion 86 -004). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public official /public employee to function in the conflicting positions without running afoul of Section 3(a). Absent a statutorily - declared incompatibility or an inherent conflict under Section 3(a), the Ethics Law would not preclude an individual from simultaneously serving in more than one position, but in each instance of a conflict of interest, the individual would be required to abstain and to satisfy the disclosure requirements of Section 3(j) as set forth above. In this case, based upon the facts which have been submitted, the Ethics Law would not preclude Fantasky's simultaneous service as a Council Member /President of the Renovo Borough Council and as Officer in Charge of the Renovo Police Department within the parameters of Sections 3(a) and 3(j). It is noted that under the Ethics Law, Fantasky's status as President of Borough Council would impose no different restrictions upon him than would his status as a Borough Council Member. Both as a Member and as President of Borough Council, Fantasky must observe the restrictions of Sections 3(a) and 3(j). In each instance of a conflict of interest, Fantasky must abstain from participation and fully satisfy the disclosure requirements of Section 3(j) as set forth above. Lastly, this advisory has been limited to addressing the narrow question posed, within the parameters of the Ethics Law. Specifically not addressed herein is the propriety or impropriety under the Borough Code of having an "Officer in Charge" in lieu of a chief of police, to the extent such may factually be the case. Conclusion: As a Member and President of Borough Council for the Borough of Renovo, Paul J. Fantasky (Fantasky) is a "public official" subject to the provisions of the Ethics Law. Fantasky may, consistent with Section 3(a) of the Ethics Law, simultaneously serve as a Member and President of Renovo Borough Council and as Officer in Charge of the Renovo Police Department, subject to the restrictions, conditions and qualifications set forth above. Lastly, this advisory has been limited to addressing the narrow question posed, within the parameters of the Ethics Law. Pursuant to Section 7(111, 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. Rosamilia 98 -536 March 31, 1998 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. r erely, Vincent J. Dopko Chief Counsel Tfro