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HomeMy WebLinkAbout92-546Mr. James P. Rigby 401 Glenwood Avenue Johnstown, PA 15905 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 "'ADVICE OF COUNSEL February 26, 1992 92 -546 Re: Simultaneous Service, Borough Council Member and Part -time Police Officer. Dear Mr. Rigby: - This responds to your letter of January 16, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a borough council member from -also or being employed as a part-time police officer. Facts: As a newly elected Council Member in Ferndale Borough, Pennsylvania, you seek the advice of the State Ethics Commission regarding your simultaneous service as a part -time police officer in Ferndale Borough. You note that the population of the Borough is well under three thousand. You state that pay for being a Council Member is $75.00 and your pay for being a part - time officer is $5.50 per hour with you averaging 3 -40 hours per month. You request an advisory as to the applicability of Section 1104 of the Borough Code which you feel can be interpreted two different ways. You state that you would like a decision so that there is nothing illegal taking place and so that you do not have to pay back money if something is wrong. Discussion: As a Borough Council Member for Ferndale Borough, you are a "public official" as that term is defined in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code 51.1 Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in - conduct that constitutes a :conflict of interest. Mr. James P. Rigby February 26, 1992 Page 2 The following terms are defined under the Ethics Law: 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. 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 judgment of the public official /employee would be influenced thereby. It is initially noted that the Commission may only address questions regarding the duties and responsibilities of public officials /public employees within the purview of the Public Official and Employee. Ethics Law. If, however, certain provisions of other laws impact upon the Ethics Law or the Ethics Law accords jurisdiction in relation to other provisions of law, then the Commission may be required to review such provisions of Mr. James P. Rigby February 26, 1992 Page 3 law. Confidential Opinion 90 -012, at 5 (citing Eialer, Opinion 85 -020) (reviewing Municipality Authorities Act). Accord, Confidential Opinion 91 -001 at 4 (reviewing Second Class Township Code). Under Section 3(a) of the.:. Ethics. Law quoted above, the Commission has determined that if a particular statutory enactment prohibits an official's receipt of a particular benefit, then that official's receipt of such :a prohibited benefit, in and through the authority of office, would also be in contravention of Ethics Law. Hoak / McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983). In this case, the relevant statutory enactment to be reviewed is Section 1104 of the Borough Code, which provides as follows: §46104. 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 : other agency created by or for the borough, or any borough office created or authorized by statue 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. No person holding the office of justice of the peace may at the same time hold the office of borough treasurer. The offices of secretary and treasurer may be held by the same person when so authorized by ordinance. Nothing herein .. contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. All appointments to be made by the council or the corporate authorities shall be made by a majority of the members of council attending the meeting at which the appointment is made, unless - different vote is .required by statute 53 P.S. S46104. Mr. James P. Rigby February 26, 1992 Page 4 In considering the above provision of law, the focus of an application of the Ethics Law would be to determine whether your receiving compensation as a part -time police officer for Ferndale Borough while simultaneously serving as a Council Member in that same Borough would be the receipt of a prohibited benefit, in and through the authority of office, such that it would be in contravention of the Ethics Law. The only portion of the above provision which appears to be relevant would.prohibit an elected borough official of a borough with a population of three thousand or more from serving as an employee of that borough. Although this Commission would not have the express statutory authority to interpret this provision . .of the Borough Code, it seems clear, based upon your representation that the population of Ferndale Borough is well under three thousand, that for purposes of applying the Ethics Law to your circumstances, your receipt of compensation as a part -time police officer for Ferndale Borough while simultaneously serving as a Borough Council Member would not be prohibited under the Ethics Law. In applying the above provisions of the Ethics Law .. to the question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if you were to serve as a public official / . employee in both capacities as a Ferndale Borough Council Member and part -time police officer. Basically,. the Ethics Law does not state that it is inherently incompatible for a public . official /employee to serve or be employed as a borough= council member and as a part -time police officer for the borough. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. Smith Opinion, 89 -010. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. However, there may be instances where a conflict of interest would,arise for you.. Section 3(a) of the Ethics Law 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, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Thus, for example, if the Borough Council were to consider your compensation, your continued; employment, benefits, and the like, a conflict of interest would exist. for you . If a situation arises where you or the respectiive entta:ties you represent develop an adverse interest, then you would have a conflict of interest. In each Mr. James P. Rigby February 26, 1992 Page 5 instance of a conflict of interest, you would be required to temove yourself from any participatjon of any nature whatsoever, including but . not limited to participating in official discussions, voting, lobbying for a particular result, or otherwise using the authority of office. Furthermore, in each instance of a Conflict - of 'interest, you would be required to publicly disclose your abstention and the reasons for same, both orally and by filing a written memorandum with the appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise, additional advice may be sought from the Commission. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Section 1104 of the Borough Code has been reviewed to the extent that it impacts upon an application of the Ethics Law to the circumstances which you have presented. Conclusion: As a Council Member for Ferndale Borough, you are a "public official" subject to the provisions of the Ethics Law. Subject to the restrictions and qualifications noted above, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of Borough Council Member and part -time police officer for the Ferndale Borough, which has a population of under three thousand. Lastly, the propriety of the proposed course of 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. Finally,' if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any ;such -appeal ;must ,be in .writing Mr. James P. Rigby February 26, 1992 Page 6 and must be received at the Commission within 15 days of the date of this Advice pursuit to 51 Pa Code 52.12. . Very truly yours, Vincent J. Dopko, Chief Counsel