Loading...
HomeMy WebLinkAbout92-633Dennis R. Biondo, Esquire Jack Hickton & Associates 701 Washington Road Mt. Lebanon, PA 15228 -1909 Dear Mr. Biondo: STATE ETHICS COMMISSION 309 FINANCE BUILIDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 9, 1992 92-633 Re: Conflict, Public Official /Employee, Borough Council Member, Immediate Family, Vote, Use of Authority of Office, Position of Borough Chief of Police. This responds to your letter of`September.2, 1992 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 borough council member with regard to the prospective hiring of his son as borough police chief, where the son is presently a sergeant in the borough's police department and for the past nine years has received total compensation in excess of that received by the chief of police. Facts: As Solicitor for the Borough of Castle Shannon in Allegheny County Pennsylvania, you request an advisory on behalf of a Borouc Council Member, Mr. Michael Cheberenchick. Council Member Cheberenchick's son is a Sergeant in the Borough's Police Department. Recently, the Chief of the Police Department retired and the Borough Council posted a notice that it is seeking to replace the Chief. Four members of the Police Department, including Councilman Cheberenchick's son ( "Sergeant Cheberenchick") have applied for the position as Chief. You note that pursuant to Section 1184 of the Borough Code, the position of Chief is filled by Council nominating a person to fill the position, whereupon the Civil Service Commission subjects the nominated person to a non= competitive examination. If the Civil Service Commission certifies the person as qualified, then Council may appoint that person to that position. Sergeant Cheberencick receives a base salary and additional compensation for overtime; = holiday pay, longevity pay, and court Dennis R. Blondo, Esquire October 9, 19922 Page 2 time. Sergeant. Cheberenchick's compensation is determined in aCcOrdance with an arbitration award and collective bargaining agreement. You have submitted a statement reflecting Sergeant CheberenthickPs compensation during the past nine years, which statement is incorporated herein, by reference.. Sergeant C ebere chJick's base salary for 1%%2 is $33 and he has received $583 in longevity pay„ $4,845 in overtimes and $1,315 in court- time to' date for. 19'9=2. Far 19%3, Sergeant. Cheberenchick's base' salary as a sergeant v.rould inx;Lease 5 %. tcr> $35 The Chief of Police durinrs the sometime period as, listed on the Submitted'- statement was %Tames Campbell. The Chief of Police is x.dt a Member' of the bargaining unit,, arLd you note that for each of the previous nine years, from 1 %83 throe 1991,, Sergeant Cheberenchick received total compensation in excess of that received by the Chief of Police. The Chief of Police base salary for` 1452 is $37,800. The new Chief of Police will receive a base salary of $37, 800 to start, and will not receive any overtime pay, holid=ay pay . longevity pay, or pay for court time. You have submitted a copy of an eietployment agreement which the Borough proposes to ent eg into with the newly selected Chief of Police, which employment agreement is incorporated herein by reference. You state that the benefits listed in Article 111.3 of the agreement are comparable to the benefits which other members of the ' Police Department receive pursuant to their collective bargaining agreement which is in effect through 1994. You state that Council has not formally acted to authorize such an agreement with the Chief of Police and will be required to do so after a person is selected to fill that position. In comparing the pecuniary benefit currently received by Sergeant Cheberenchick as compared to the pecuniary benefit which the Chief of Police will receive, you proffer your opinion that the difference, if any is minimal and that most likely, the Chief will Continue to receive less in total compensation than a sergeant in Sergeant Cheberenchick's position. Council Member Cheberenchick is requesting an opinion as to Mhether he can: (1) vote for the selection of a Chief of Police if (his soft is .proposed to fill that position, (2) vote for the :selection of a Chief of Police if his son is not being proposed to fill that position or (3) vote to authorize the appropriate Borough Officials to enter into an agreement with his son if he i,N the person selected , to till the position of Chief of Police. YOU 41PP seek advice as to what, if any, disclosure Mr. Cheberenchick would be required to make regarding these matters. Noting that Counsel expects to make a decision regarding the selection of a person to fill the position of the Chief of Police Dennis R. Biondo, Esquire October 9, 1992 Page 3 at its regularly scheduled meeting of-`- September. 14, 1992, you seek an expedited advisory._ Discussion: As a Borough Council Member for the "Borough of Castle Shannon in Allegheny. County, Pennsylvania, Mr. Michael Cheberenchick is a public official as that term is defined under the Ethics Law, and hence he 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 2. Definitions. "Conflict or conflict of interest." Use by a• 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 it associated. "Conflict" or "conflict of interest" does not include an action having a ode minimis economic impact or which affects to the same degree a class consisting ofi,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 : 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 Dennis R. Biondo, Esquire October 9, 1992 Page 4 - "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State . or political subdivision as one party and a public official or public employee as the other party, concerning his -expense reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth - or a political subdivision. 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 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(f) of the Ethics Law provides: §2.9112D 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which- the public official. or public employee is associated or any subcontract valued at $500 or moge with any person who has been. awarded. ; -a ; contract with the governmental body with which: the public official < - or public employee is associated unless the contract- has,; . been awarded though an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. in such a case, the public official a= public employee sh - not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract Dennis R. Biondo, Esquire October 9, 1992 Page 5 made, in- violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the above particular provision of law would require that an open and public process must be used in all situations where _a public official /,employee is otherwise appropriately contracting with his own governmental body in an amount of $500.00 or more. This open and public process would require: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent - competitor /applicant to be able to prepare and present an application or proposal; public disclosure of all applications or proposals considered and;- (3) (4) public disclosure of the contract awarded and offered and accepted. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract. 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, onier or ordinance, the following , procedure for shall be employed. Any public_ official dr : . = n a c public employee, who in the •discharge ' of his 1, L; official duties, would be required to 'vote on f = x a matter that would result in a• conf 1ic -. db interest shall abstain from voting sand, to the vote being taken, publicly-ianncutiae'a'ld disclose the nature of 41.is„-lattvrestasi public record in a written' `memorandum' tiled with the person responsible far recording' the':'.: minutes of the meeting at which .the. Ivotez . is . taken, provided that whenever a governing body •. Dennis R. Biondo, Esquire October 9, 1992 Page 6 would be unable to take any action on a matter before it because the number of membersof_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. t ' In applying the .above provisions of the .Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) 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, any member of his immediate family, or a business with which he or a member of his immediate family is associated. • Since the term "immediate family" is defined to include a parent, spouse, child, brother or sister and since;Councilmah Cheberenchick and his son, Sergeant Cheberenchick, are in the familial relationship delineated above, Section 3(a) of the Ethics Law would prohibit Council. Member Cheberenchick from using the authority of his office or confidential information received from holding that position to advance his son's prospects in filling the position of Chief of Police for the Borough of Castle Shannon. Davis, Opinion 89 -012. If Council Member Cheberenchick were to participate in setting the criteria for the position, or in official discussions or voting to fill the position of Borough Chief . of ,Police where his son is one of . the candidates for that position, such action would be a use of the authority of office for the private pecuniary benefit of his son in_ contravention of the Ethics Law. Thus, a conflict of interest would arise for Council Member Cheberenchick under the first and third specific inquiries which you have posed. It is parenthetically noted that the Commission has held that a prohibited use of authority of office or Dennis R. Biondo, Esquire October 9, 1992 Page 7 confidential information would apply as well to acting to the detriment of competitors. See, Pepper, Opinion 67 -008. In each instance of a conflict of interest, Council Member Cheberenchick would be required to abstain from any participation of any nature whatsoever and to fully satisfy the disclosure requirements of Section 3(j) as set forth above. The submitted fact that Sergeant Cheberenchick has historically received total compensation in excess of that received by the Chief of Police would not alter the above conclusions. The base salary for Sergeant Cheberenchick in 1993, if he remains a sergeant, would be $35,446 which is approximately $2,300 less than the base salary for•the new Chief of Police -- a difference which is far from "minimal." Second, it is speculative to assume that were Sergeant Cheberenchick to remain in his present position, he would continue to receive additional compensation such as overtime so that his total compensation would exceed that of the Chief of Police. In contrast, the increase in base salary which Sergeant Cheberenchick would receive if selected as Chief of Police would be guaranteed. Finally, although difficult to quantify, there would be a pecuniary benefit in achieving a more essential employment position with the Borough as Chief of Police. r As for your second specific inquiry, which poses a scenario where Council Member Cheberenchick's son would not be proposed to fill the position of Chief of Police, you are advised that so long as Sergeant Cheberenchick is a potential candidate for the position, a conflict will exist for his father as a Council Member -- even if another applicant has been proposed and is going through furthe steps for filling the position. At such time as Sergeant Chebez enchjck is j19 no longer a potential candidate for the position+ a...confl ct of i,nt would no longer' exist ,fv Council Member Cheberenchick untaer, the Ethics Lanz, �pditione ugpn the assumption that there would ga be no other situ presenting a conflict of interest for Council; biember,phebereriChick, such as the consideration of another i ediate'familj member for the position. Fi�tlly, as to $eoticoi 3(f) ; of the ' Ethics Law quoted above, this s, pro4gion,ef law has strict,- requirements whenever a public official /employee would co with his governmental body. The teen "govarn n; a ,.body with which a public official or public employee is or has ;been associated" is defined as follows: Section 2. Definitions "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, Dennis R. Bigndo, Esquire October 9, 1992 Page 8 officer, administration, legislative body, ®r other establishment in the Executive,. Legislative or Judicial Branch of a State, a nation, or a political subdivision thereof or an agency performing a governmental function. Under the above quoted definition, it is clean that the ge ereme#tal b ©dy with which Sergeant Cheberefchick is associated would include the Borough of Castle Shannon .Accordingly, under Section 3(f) of the Ethics. Law, any contract that Sergeant Cheberenehick would negotiate with the Borough of Castle Shannon for the pesition of -Chief of Police would have =to awarded through an wen and Public process including prior public notice and Subsequent public disclosure, in that the contract would be valued at $50Q er cores Therefore, in order for such contracting to be allowed under the Ethics Law, strict compliance with the provisions of Seetiien 3 f) of the Ethics Law as outlined above must be followed, " Un Oss the restri,otions of Section • 3 (f) of the Ethics Law are gQmplied with, such contracting would be prohibited. The propriety of the proposed conduct has only been addressed under tie Eth.ios isw; the applicability of any other statute, code, ordinance f reguleti9n er other >oode of conduct other . than the Ethics L has net been considered in that they do not involve an interpretation of the Ethics L w,• Specifically not addressed herein is the applicability Qf the Borough Code. Ceeclesione A a Borough Ceunei1 Member for the Borough of Castle Shannon in Allegheny Ce unty, Pennsylvania, . Mr s Michael eheberenchick is a public official mobbed to the provisions Qf the Ethics Law Council Member Cheberenehiek would have a conflict of interest as to official conduct in filling the position of Borough Chief of Police where his son, Sergeant Cheberenohick, is seeking to fill'the position. In each instance of a conflict of interest, Counei l Member Cheberenohick would be required to abstain f roan any participation of any nature whatsoever and to fully satisfy the disclosure requirements of Section 3 (j) as set forth above. The r-equire#mtents Qf Se_ction 3 (f) of the Ethics Law as set forth above must be ebeerved as to any contract between the Borough of Castle Shannon end Sergeant Cheberenohick if valued at $50 or more, which would include dA emp oyment contract for. the position of Borough Chie€ of PQli ee, In addition, if a contract is awarded tQ Sergeant Cheberench ok a Council Member Cheberench.ick may not have any supervisery er evereli roe nsibility for the impleRmentation or adiimf.nistratien of the contract. Lastly, the propriety of the proposed eenduet hems, e ly been addressed under the. Ethics Law. Pursuant to. Beetion 7 (11) , this Advice is a complete defense in any enf4: a nt proceedint, initiated by the Commission, and evidence of good faith conduiet in. any other civil. or criminal Dennis R. Biondo, Esquire October 9, 1992 Page 9 proceeding, providing the requestor _ has disclosed truthfully all the material, facts and committed the acts complained of in relianoe on the Advice given. such, This letter is a public record and, will be made available as 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 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa, Code §2.12. 'ncerely, wtr Vincent Do ko Chief Counsel -