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HomeMy WebLinkAbout02-587 PlaistedFrancis J. Plaisted 800 McKinley Avenue Butler, PA 16001 ADVICE OF COUNSEL August 15, 2002 02 -587 Re: Conflict; Public Official /Employee; Police; Captain; City; Candidate; District Justice. Dear Mr. Plaisted: This responds to your letter of July 12, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.GS. § 1101 et seq., presents any prohibition or restrictions upon a Police Captain as to running for the elected position of District Justice. Facts: Magisterial District 50 -1 -01 in Butler County covers the City of Butler, bufR Township, and Connoquenessing Borough. The district is scheduled to be split between Butler City and Butler Township so that each will have its own Magisterial District with Connoquenessing attaching to another existing district. The sitting District Justice has decided that he will be the District Justice for Butler Township District leaving the Butler City District Justice position open for the general election. As a Butler City resident, you are considering running for District Justice for the City of Butler. You are employed as a full -time police officer by the City of Butler with the rank of Captain. You contacted your attorney to inquire whether you may run for public office while being employed as a police officer. The attorney found one case where the court upheld the request of a constable to run for district justice. Your attorney advised that if you win the general election, you would have to retire from your police position. As Police Captain for the City of Butler, your primary responsibility is to conduct criminal investigations. Although you are responsible for investigating all crimes, you specialize in homicide, sexual assaults, computer crimes and fraud. You come under the direct supervision of the Chief of Police and you have one detective sergeant who falls under your direct supervision. There are 4 lieutenants and 4 sergeants in the patrol division that do not fall under your direct supervision unless the matter involves a criminal investigation. There are 12 patrol officers in the division who do not fall under Plaisted, 02 -587 August 15, 2002 Page 2 your direct supervision unless they assist in a criminal investigation. You collect crime and arrest data and complete reports that are submitted to the Chief of Police for submission in turn to City Council. You also submit the Uniform Crime Reports to the Pennsylvania State Police. You also conduct use of force and firearms training. Purchasing and policy making powers are the prerogative by the Chief of Police. You question whether you are permitted to run for the district justice position while on active duty as a police officer, and if so, whether any restrictions will be imposed upon you 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. As Police Captain for the City of Butler, 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. As a candidate for district justice, you are also subject to the filing requirements as to Statements of Financial Interests (SFI's). 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. Plaisted, 02 -587 August 15, 2002 Page 3 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. Section 1103(a) of the Ethics Act prohibits a public official /public employee 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. Plaisted, 02 -587 August 15, 2002 Page 4 Although the Ethics Act would not bar you from running for the office of district justice while you are a Butler City Police Captain, you would be required to fully and accurately complete and file an SFI as a candidate for office. Section 1104(b)(2) of the Ethics Act provides: (2) Any candidate for county -level or local office shall file a statement of financial interests for the preceding calendar year with the governing authority of the political subdivision in which he is a candidate on or before the last day for filing a petition to appear on the ballot for election. A copy of the statement of financial interests shall also be appended to such petition. 65 Pa.C.S. § 1104(b)(2) As a candidate for district justice, you will have to file the SFI in the county in the district in which you are a candidate. Assuming that you will not be a write -in candidate, you will also have to append the SFI to your nomination petition when filed with the County Board of Elections. If you are elected district justice, you will become part of the judiciary and not subject to the Ethics Act regarding the restrictions that are imposed upon public officials /public employees, except for Sections 1103(b) and (c) which apply to everyone. See, Billotte, Opinion 00 -005. 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. Conclusion: As a Police Captain for the City of Butler, you are a public emp oyee subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. Although the Ethics Act would not bar you from running for the office of district justice while you are a Butler City Police Captain, you would be required to complete a file on Statement of Financial Interests as a candidate for office. If you are elected district justice, you will become part of the judiciary and not subject to the Ethics Act regarding the restrictions that are imposed upon public officials /public employees, except for Sections 1103(b) and (c) which apply to everyone. 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. Plaisted, 02 -587 August 15, 2002 Page 5 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