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Home My WebLink About92-642Mr. Donald P. Medred R.D. #4, Box 176 Tarentum, PA 15084 Dear Mr. Medred: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 6, 1992 92 -642 Re: Conflict, Public Official /Employee, Township Supervisor, Use of Authority of Office or Confidential Information, Voting, Immediate Family, Police Chief, Hiring of Police Chief Where Son is a Police Officer. This responds to your letter of October 6, 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 township supervisor with regard to the selection of a new township police chief, where the supervisor's son is a township police officer but is not on the list of possible candidates for chief. Facts: Noting a prior telephone conversation with staff of this Commission, you seek an advisory from the State Ethics Commission. You state that you have been a West Deer Township Supervisor for the past ten months. You note that this is your first term in public office, and you state that you seek to do what is right and act in a legal manner. The Township is in the process of selecting a new Police Chief and you indicate that a vote will take place at a meeting on October 14, 1992. You state that your son has been a Township Police Officer for the past two years, but that he is not on the list of possible candidates for Chief. You specifically inquire as to whether you must abstain from voting on this issue . because your son is a police Officer in the Township.. You seek : a,,: expedited advisory. Discussion: As a Township Supervisor for West Deer Township, Pennsylvania, 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. Mr. Donald P. Medred November 6, 1992' Page 2 Section 1(a) of the Ethics Law provides :; Section 3. Restricted Activi (a) Na ° 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. "Coaf l ic.t or conflict of interest," Ua:e by a public official or public employees o 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 Qr a business with which he or a member of his immediate family is associated. "Authority of office or employment." T'he actual power provided by law, the exercise pf 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. 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 an, ing of monetary value and no public official/AMp.1 shail SO i°cit or accept anything of monetary value bald upon the understanding ing that the vote, official action,, . 9i: judgement of the psiblic 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 tmang'ression thereof but merely to provide a complete response to the question -presented.. Mr. Donald P. Medred November 6, 1992 Page 3 Section 3(j) of the Ethics Law provides as follows: Section 3. Restrj.cted 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 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 i 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, written memorandum to that effect with the person recording:' the minutes or supervisor. 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. Mr. Donald P. Medred November 6, 1992 Page 4 Your son is a member of your "immediate family" as that term is defined in the Ethics Law. However, the facts which you have submitted indicate that your son is not on the list of possible candidates for Chief. Therefore, Section 3(a) of the Ethics Law would not preclude your taking part in the selection of a new Police Chief. However, this advisory is conditioned upon the assumptions that no other member of your immediate family would be seeking the position; there would be no improper understandings violative of Sections 3(b) or 3(c) of the Ethics Law; and further that there would be no use of authority of office to eliminate candidates for the position so as to create an opportunity for a member your immediate family. See, Pepper, Opinion 87 -008. 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. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a Township Supervisor for West Deer Township, Pennsylvania, you are a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not preclude your participation in the selection of a new Township Police Chief where neither your son nor any other immediate family member is under consideration for that position. This Advice is conditioned upon the assumption that there would be no understandings violative of Sections 3(b) or 3(c) or any use of authority of office to eliminate candidates for the position so as to create an opportunity of employment for an immediate family 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. 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 and must be received at Mr. Donald P. Medred November 6, 1992 Page 5 the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, 0-00 Vincent fit. Dopko Chief Counsel -