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Home My WebLink About92-638Paul J. Nardozzi 122 Willow Street Dunmore, PA 185 Dear Mr. Nardozzi: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (.7.1) 783-1810 ADVICE OF COUNSEL October 29, 1992 y 4' i 92 -638 Re: Public Official /Employee, Borough Council Member, Former Public Official /Employee, New Employment, Governmental Body, Employment as Borough Police Chief. This responds to your letter of September 21, 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 prospective employment as the borough police chief. Facts: As a Borough 'Council Member for the Borough of Dunmore, Pennsylvania; you request an advisory from the State Ethics Commission - . You state that the Borough Police Chief may opt to retire at the end of the year. Having been employed in the law enforcement field as a part - time police' officer in Jefferson Township since 1982, being Act 120 certified, and being a full -time senior loss prevention supervisor (manager) for a large supermarket chain, you believe your qualifications would be sufficient to apply for this Chief of Police position. Noting your familiarity with the Ethics Law, you state that you have read that you must wait one year to assume employment in the same political subdivision after leaving the Council. However, you state that you have also read of similar cases and situations where the one -year rule has been waived. Although the Police Chief's retirement is not yet formalized, you seek an advisory as to whether you must wait for one year before accepting such a position if offered to you. Discussioi: As a Borough;..l ouncil Member„ ;for 'the Borough of Dunmore, penrisylvania, you are a public official as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Paul J,, XFardozzj October 2,9,, 1992 Page 2 Section 3(a) of the Ethi,-cs I w provides: Section 3. Restricted Activities. (a) No pub 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: Sscti -on 2 . Defnjtions . "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(g) of the Ethics Law provides: Section. Rest ;icted activities (g). No former public official or public employee shall represent a person, with promised or actual compensation,. on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P. 5403(g). Paul J. Nardozzi October 29, 1992 Page 3 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(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 wider the. provisions of this section makes the majority or other legally required vote of app oval, unattainable, then such members permitted to vote if disclosures are made-as' otherwise provided herein. In the case of a three- member governing body of a ,poli.tic .l ,; ,, subdivision, where one member has,: abstainiod from voting as a result of a conflict interest, and the remaining two members of, tit e . governing body have cast opposing votes, tl�s. member who has abstained shall be permitted to vote to break,,; the tie .vote, 1.. Al is j . made as =other provit ed 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 Paul J. 'iardozzi October 29, .1992 Page 4 minutes pr supervisor. In applying the above provisions of the Ethics T.aw to the circumstaices which you have submitted, pursuant to Section 3(a) of the Ethics Law, a public official /public employee if 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. Although Section 3(a) of the Ethics Law would not preclude you from being'cpnsidered or hired for the position of Police Chief for the Borough of Dunmore, Section 3(a) would prohibit you from using confidential information or the authoritypf office to advance your own selection or to eliminate any competitors for that position. Thus, although you may apply for that position and submit your resume and qualifications in an interview pursuant thereto, you could not use the authority of your public office as a means = in whole or part to promote your employment or conversely to eliminate any competitors for the position. Pepper, Opinion 87 -008. Subject to the qualifications as noted above, Section 3(a) of the Ethics Law would not prohibit your prospective employment as Police Chief for the Borough pf Dunmore. lea, Bono n, Opinion 90 -003. Upon leaving the position of Borough Council Member, the restrictions of Section 3(g) would not preclude your seeking employment with the Borough of Dunmore. Rather, by its terms, Section 3(g) applies to restrict a former public official /public employee from representing a person before his former governmental body, with promised or actual compensation, for a period of one year after leaving that bpdy. The provision does not restrict seeking employment with the former governmental. body. Thus, Section 3(g) of the Ethics Law would not restrict you, should you leave the position of Borough Council Metier, from seeking the position of Borough Police Chief with the Borough of Dunmore. 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. Conclusion: As a Borough Council Member for the Borough of Dunmore, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law wound mot- preclude PPP from being considered or hired for the position, of Police Chief for the Borough of Dunmore, Section 3(a) would prohibit, you from using the authority of office or confidential_ information as a. means; of promoting such prospective Paul J. Nardozzi October 29, 1992 Page 5 employment or eliminating competitors. Section 3(g) of the Ethics Law would not restrict you from seeking the position of Borough Police Chief should you ::leave the position of Borough Council Member. 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. 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 52.12. Sincerely, Vincent 0 V' Dopko Chief Counsel