HomeMy WebLinkAbout05-506 DienerDonna Diener
111 Saniel Drive
West Mifflin, PA 15122
ADVICE OF COUNSEL
February 11, 2005
05 -506
Re: Conflict; Public Official /Employee; Borough; Candidate for Mayor; Immediate
Family; Spouse; Borough Police Chief.
Dear Mrs. Diener:
This responds to your letter of January 5, 2005, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., would present any prohibition or restrictions upon a candidate
for borough mayor, or if elected, borough mayor, whose spouse is the borough police
chief.
Facts: As a prospective candidate for the office of mayor of West Mifflin Borough
( "Borough "), you request an advisory from the State Ethics Commission. You ask
whether, pursuant to the Ethics Act, you would be permitted to run for and serve in the
position of Borough Mayor given that your husband serves as Borough Police Chief.
It is noted that you have submitted materials pertaining to the Borough ordinance
regarding the police department, including an Allegheny County Court of Common
Pleas decision.
Discussion: It is initially noted that pursuant to Sections 1107(10) and (11) of the
Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based
upon the facts that the requestor has submitted. In issuing the advisory based upon the
facts that the requestor has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that 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
Diener, 05 -506
February 11, 2005
Page 2
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.
If you would be elected Mayor of the Borough, you would in that capacity be a
public official subject to the Ethics Act.
Sections 1103(a) and 1103(j) of the Ethics Act provide:
§ 1103. Restricted Activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
(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
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February 11, 2005
Page 3
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(a), (j).
The following terms pertaining to conflicts of interest under the Ethics Act are
defined 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.
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. You are
further advised that the use of authority of office is more than the mere mechanics of
voting and encompasses all of the tasks needed to perform the functions of a given
position. See, Juliante, Order 809. Use of authority of office includes, for example,
discussing, conferring with others, and lobbying for a particular result.
Subject to certain voting conflict exceptions contained therein, Section 1103(j)
requires a public official /public employee with a conflict of interest to abstain fully 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. See,
Pavlovic, Opinion 02 -005.
Your spouse is clearly a member of your "immediate family" as that term is
defined in the Ethics Act. Therefore, as Borough Mayor, you would generally have a
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February 11, 2005
Page 4
conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters that would
financially benefit yourself, a member of your immediate family such as your spouse, or
a business with which you or a member of your immediate family is associated. When a
conflict of interest would arise for you, you would be required to abstain from using the
authority of office in such matter(s) and you would also be required to satisfy the
disclosure requirements of Section 1103(j) of the Ethics Act.
As to your question of whether you may run for and serve in the position of
Borough Mayor given that your spouse is the Borough Police Chief, you are advised
that the Ethics Act would not prohibit you from running for the office of Mayor while your
spouse would be serving as the Borough Police Chief. However, if you would be
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 spouse 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 spouse 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 spouse,
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. Specifically not addressed herein is the Borough Code,
Borough ordinances, or cases pertaining to Borough ordinances.
Conclusion: If you would be elected Mayor of West Mifflin Borough ( "Borough "), you
would in that capacity be a public official subject to the Public Official and Employee
Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Your spouse is clearly a member
of your immediate family. Pursuant to Section 1103(a) of the Ethics Act, as Borough
Mayor, you would generally have a conflict of interest in matters that would financially
benefit yourself, a member of your immediate family such as your spouse, or a business
with which you or a member of your immediate family is associated. Although the
Ethics Act would not prohibit you from running for office or serving as Mayor of the
Borough while your spouse 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 spouse, the Police Chief. 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.
Diener, 05 -506
February 11, 2005
Page 5
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