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HomeMy WebLinkAbout03-549 Nunkester JrRoger W. Nunkester, Jr. 124 Willow Drive Berwick, PA 18603 Dear Mr. Nunkester: ADVICE OF COUNSEL May 20, 2003 03 -549 Re: Conflict; Public Official /Employee; Borough; Council Member; Mayor; Immediate Family Member; Father; Police Chief. This responds to your letter of April 18, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1a. =S. § 1101 et seq., would present any prohibition or restrictions upon a borough council member who plans to run for the office of borough mayor with regard to his father's appointment /service as borough police chief. Facts: As a current Borough Council Member of Berwick Borough ( "Borough ") and prospective candidate for Borough Mayor, you seek an advisory from the State Ethics Commission based upon submitted facts which may be fairly summarized as follows. Borough Council recently suspended the Borough Chief of Police and appointed your father, the senior sergeant on the police force, as Acting Police Chief. You state that you did not vote on your father's appointment. You expect that your father will apply for a permanent position as Borough Chief of Police. You state that you intend to abstain from the entire process including all interviews as well as the vote. You note that you have already abstained from the vote to ratify the police contract. You pose the following questions: 1. Whether you must resign from your current position as a Borough Council Member if your father is appointed Police Chief; 2. If you may remain a Council Member, whether you must abstain from all votes pertaining to your father personally; and Nunkester, 03 -549 May 20, 2003 Page 2 3. Whether y ou may run for the office of Borough Mayor if your father is appointed Borough Police Chief. 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 administratively noted that the Borough Code provides in pertinent part as follows: § 46121. Appointment, suspension, reduction, discharge, powers; mayor to have control Borough council may, subject to the civil service provisions of this act, if they be in effect at the time, appoint and remove, or suspend, or reduce in rank, one or more suitable persons, citizens of the United States of America, as borough policemen .... The borough council may designate one of said policemen as chief of police. The mayor of the borough shall have full charge and control of the chief of police and the police force, and he shall direct the time during which, the place where and the manner in which, the chief of police and the police force shall perform their duties, except that council shall fix and determine the total weekly hours of employment that shall apply to the policemen The borough may, by ordinance, establish a police department consisting of chief, captain, lieutenant, sergeants, or any other classification desired by the council, and council may, subject to the civil service provisions of this act, if they be in effect at the time, designate the individuals assigned to each office, but the mayor shall continue to direct the manner in which the persons assigned to the office shall perform their duties. The mayor may, however, delegate to the chief of police or other officers supervision over and instruction to subordinate officers in the manner of performing their duties.... 53 P.S. § 46121. In your current capacity as a Borough Council Member, you are a public official as that term is defined in the Ethics Act, and hence you are subject to the provisions of the Ethics Act. Likewise, if you would be elected Mayor of the Borough, you would in that capacity be a public official subject to the Ethics Act. Section 1103(a) of the Ethics Act provides: Nunkester, 03 -549 May 20, 2003 Page 3 § 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. "Immediate family." A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102. 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 Nunkester, 03 -549 May 20, 2003 Page 4 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 the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. 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. Your father is clearly a member of your "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, as a Borough Council Member, you would generally have a conflict of interest in matters that would financially benefit you, a member of your immediate family such as your father, or a business with which you or a member of your immediate family is associated. In each instance of a conflict, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Your specific questions shall now be addressed. In response to your first and second questions, you are advised that if your father would be appointed Borough Police Chief, you would not be required to resign from your current office as Borough Council Member. However, subject to certain statutory exclusions discussed below, you would have a conflict of interest in matters that would financially impact your father, such as, for example, your father's reappointment, removal, suspension, reduction in rank, weekly hours of employment and compensation. In each instance of a conflict of interest, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. You are advised that there are two statutory exclusions within the definition of "conflict" or "conflict of interest," hereinafter referred to as the "de minimis" exclusion and the "class/subclass exclusion." The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. As for the class /subclass exclusion, in order for the exclusion to apply, two criteria must Nunkester, 03 -549 May 20, 2003 Page 5 be met: (1) the affected public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same degree" On no way differently) than the other members of the class /subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02 -003; Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90 -017); Rubenstein, Opinion 01 -007. The first criterion of tie exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual/ business in question and the other members of the class /subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. As a practical matter, it would be unusual for the class /subclass exception to apply in matters financially impacting your father as Borough Police Chief because typically, the first criterion would not be established. In response to your third question, you are advised that the Ethics Act would not prohibit you from running for the office of Mayor while your father would be serving as the Borough Police Chief. However, if elected, serious concerns would exist as to the repeated and recurring conflicts of interest that would arise under Section 1103(a) of the Ethics Act if you would serve as Mayor while your father would serve as Police Chief. As Mayor, with "full charge and control of the chief of police" (53 P.S. § 46121), you would have so many recurring and ongoing conflicts of interest that, as a practical matter, it would be difficult for you to function as Mayor. Thus, although the Ethics Act would not prohibit you from serving as Mayor while your father would serve as Police Chief, the conflicts of interest that would arise repeatedly and routinely for you would severely impact upon your ability to function as Mayor. Furthermore, in the absence of a pre- existing mechanism in place specifying how and by whom your authority as Mayor should be exercised in the event of a conflict, you as Mayor would be prohibited under Section 1103(a) of the Ethics Act from participating in designating a subordinate to act in your stead as to matters involving your father, the Police Chief. Cf., Confidential Opinion, 02 -004. 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 a Borough Council Member for Berwick Borough ( "Borough "), you are a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. If elected Borough Mayor, you would in that capacity be a public official subject to the Ethics Act. If your father would be appointed Borough Police Chief, you would not be required to resign from your current office as Borough Council Member. However, subject to the "de minimis" exclusion and the "class /subclass" exclusion to the statutory definition of "conflict" or "conflict of interest," you would have a conflict of interest in matters that would financially impact your father. In each instance of a conflict of interest, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Although the Ethics Act would not prohibit you from running for office or serving as Mayor of the Borough while your father would serve as Borough Police Chief, the conflicts of interest that would arise repeatedly and routinely for you as Mayor would severely impact upon your ability to function as Mayor. In the absence of a pre - existing mechanism in place specifying how and by whom your authority as Mayor should be exercised in the event of a conflict, you as Mayor would be prohibited under Section 1103(a) of the Ethics Act from participating in designating a subordinate to act in your stead as to matters involving your father, the Police Chief. Nunkester, 03 -549 May 20, 2003 Page 6 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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