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HomeMy WebLinkAbout02-626 BuchoDan Bucho, Chief of Police Girard Borough Police Department 34 Main Street, West Girard, PA 16417 Dear Chief Bucho: ADVICE OF COUNSEL December 31, 2002 02 -626 Re: Conflict; Public Official /Employee; Borough; Chief of Police; Insurance; Private Pecuniary Benefit /Detriment; Monetary Payment In Lieu of Insurance Benefits. This responds to your letter of November 22, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether, pursuant to the Public Official and Employee Ethics Act ( "Ethics c , 65 Pa.C.S. § 1101 et seq., a borough chief of police may relinquish a portion of his borough. paid health insurance benefits and receive the balance in a monetary payment in lieu of such benefits. Facts: As Chief of Police for Girard Borough ("Borough"), you seek an advisory roam fhe State Ethics Commission based upon the following submitted facts. In August 2002 Girard Borough Council ("Borough Council ") reduced police coverage in the Girard community for a particular shift. The Girard community and the Girard Police Department objected to the reduced shift coverage. You have submitted several newspaper articles on the subject. At Borough Council's November 18, 2002, meeting, you submitted to Borough Council a proposal whereby: (1) you would relinquish to the Borough $5,000 of the $7,773.72 to which you are entitled in Borough -paid health insurance benefits; (2) such money would be used by the Borough to reinstate the police coverage; and (3) the balance of your health insurance benefits in the amount of $2,773.72 would be paid to you as a monetary payment in lieu of health insurance coverage. You ask whether either you or Borough Council would violate the Ethics Act if Borough Council would accept the above proposal. Bucho 02 -626 December 31, 2002 Page 2 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only to the person whose conduct is in question, his authorized representative, or, when applicable, his appointing body or employer. To the extent you have inquired as to the conduct of Members of Borough Council without their express permission, you are considered a third party without legal standing. Additionally, the State Ethics Commission does not have jurisdiction to review the proposed conduct of Borough Council as a governmental body. Therefore, this advisory must necessarily be limited to addressing only your prospective conduct. As Borough Chief of Police, you are a public employee subject to the provisions of the Ethics Act. 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. 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. 65 Pa.C.S. § 1102. Bucho 02 -626 December 31, 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 applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, 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. Under the submitted facts, you are currently receiving health insurance coverage at the Borough's expense. It is noted that the Borough Code authorizes borough councils to provide borough -paid health insurance coverage to borough employees. 53 P.S. §§ 46202(37), (74). Therefore, to the extent Borough Council has acted to authorize Borough -paid health insurance coverage for you, as Chief of Police, you may receive such coverage at the Borough's expense without transgressing Section 1103(a) of the Ethics Act. Bucho 02 -626 December 31, 2002 Page 4 Your proposed relinquishment of a portion of your Borough -paid health insurance benefits would result in a financial detriment rather than a private pecuniary benefit to you. Additionally, there is no indication in the submitted facts that such action would result in any other prohibited private pecuniary benefit (such as could occur, for example, if the reinstated police coverage would generate work for a member of your immediate family). Therefore, you are advised that Section 1103(a) of the Ethics Act would not prohibit you from relinquishing $5,000 of your Borough -paid health insurance benefits to the Borough to be used for the reinstatement of police coverage conditioned upon the assumption that such action would not result in any private pecuniary benefit prohibited under Section 1103(a) of the Ethics Act. See, Chesnutt, Advice 96 -588; Borgo, Order 957; Eisaman, Order 958; and Zentner, Ord 963. As for whether you may receive the balance of $2,773.72 in lieu of health insurance coverage, only general guidance may be given under the submitted facts. Although the State Ethics Commission does not have the statutory jurisdiction to interpret laws other than the Ethics Act, such other laws become relevant when it is necessary to determine whether a public official /employee may receive a pecuniary benefit under the Ethics Act. In such cases, other laws must be considered to determine whether the pecuniary benefit is permitted under the Ethics Act as authorized in law or is prohibited as a private pecuniary benefit without authorization in law. A financial gain to a public official /public employee that is other than compensation provided for by law is a private pecuniary benefit. Thompson, Opinion 99 -005, at 3 -4. Assuming that government -paid benefits are lawfully available to a given public official /public employee, the propriety of such individual foregoing the benefits in return for some monetary payment depends upon whether there is a specific authorization in law permitting a monetary payment in lieu of benefits. Thompson, supra, at 5. If benefits are authorized in law without a specific option to forego the benefits for a monetary payment, then the public official /public employee may not obtain such a pecuniary benefit. Id. Thus, even if you as Chief of Police are entitled to receive health insurance benefits at the Borough's expense, you may not receive a monetary payment in lieu thereof under the Ethics Act unless there is a specific authorization in law permitting you to exercise an option to forego such benefits for a monetary payment. Because the submitted facts do not indicate whether there is specific authorization in law (such as a Borough ordinance) permitting you to forego a portion of your Borough -paid benefits for a monetary payment, this advisory must necessarily be limited to providing the above general guidance as to this aspect of your inquiry. 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 Chief of Police for Girard Borough ( "Borough "), 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. Section 1103(a) of the Ethics Act would not prohibit you from relinquishing $5,000 of your Borough -paid health insurance benefits to the Borough to be used for the reinstatement of police coverage conditioned upon the assumption that such action would not result in any private pecuniary benefit prohibited under Section 1103(a) of the Ethics Act. Section 1103(a) of the Ethics Act would prohibit you from receiving a monetary payment in lieu of a portion of your Borough -paid health insurance coverage unless there is a specific authorization in law permitting you to exercise an option to forego such benefits for a monetary payment. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Bucho 02 -626 December 31, 2002 Page 5 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. 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