HomeMy WebLinkAbout06-601 PopovichJoseph J. Popovich
Chief of Police
Borough of West Mifflin
1656 Greensprings Avenue
West Mifflin, PA 15122
ADVICE OF COUNSEL
November 27, 2006
06- 601
Dear Chief Popovich:
This responds to your letter of October 25, 2006, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et seq., would impose any prohibition or restrictions upon a Borough Police
Chief with regard to running for the elected office of Magisterial District Judge while
serving as the Borough Police Chief.
Facts: You are the Police Chief for West Mifflin Borough ( "Borough "). You were
appointed to this position by Borough Council. You state that you are not an at will
employee" or covered by the "Chief's Act," but that you are covered under the civil service
laws. You are considering running for the office of Magisterial District Judge. It is your
understanding that if you would be elected to that office, you would be required to resign
from your position as Borough Police Chief and police officer. You ask whether the Ethics
Act would require you to resign from your position as Borough Police Chief once you would
file a nomination petition for the office of Magisterial District Judge, or whether the Ethics
Act would permit you to remain in your position as Borough Police Chief while running for
that office.
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 requester based
upon the facts that the requester has submitted. In issuing the advisory based upon the
facts that the requester 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 requester 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 requester has truthfully disclosed all of the material facts.
As Police Chief for the Borough, you are a public official /public employee as that
term is defined in the Ethics Act and hence you are subject to the provisions of that Act.
Popovich, 06 -601
November 27, 2006
Page 2
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 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
Popovich, 06 -601
November 27, 2006
Page 3
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
It is administratively noted that the Borough Code provides, in pertinent part, as
follows:
§ 46190 Removals
No person employed in any police or fire force of any
borough shall be suspended, removed or reduced in rank
except for the following reasons:
(6) Engaging or participating in conducting of any
political or election campaign otherwise than to exercise his
own right of suffrage.
53 P.S. § 46190(6).
In applying the above provisions of the Ethics Act to the inquiry that you have
posed, you are advised as follows. The Ethics Act does not prohibit a public official /public
employee from seeking another public position. Rather, the Ethics Act prohibits a public
official /public employee from simultaneously holding two positions that are statutorily
incompatible or that result in an inherent conflict. Therefore, you are advised that the
Ethics Act would not prohibit you from running for the office of Magisterial District Judge
while serving as the Borough Police Chief. (You are reminded that as a candidate for
Magisterial District Judge, you would be required to file a Statement of Financial Interests
with the county in the district in which you are a candidate and append a copy to your
nomination petition when filed with the County Board of Elections, in accordance with
Section 1104(b)(2) of the Ethics Act, 65 Pa.C.S. § 1104(b)(2)).
However, the propriety of the proposed conduct has only been addressed under the
Ethics Act. The question of whether you may participate in or conduct a political or
election campaign while serving as the Borough Police Chief is governed by civil service
restrictions of the Borough Code, not the Ethics Act. See, 53 P.S. § 46190(6). Specifically
not addressed herein is the applicability of such civil service restrictions. It is
recommended that you obtain legal advice in that regard.
Conclusion: As the Police Chief for West Mifflin Borough ( "Borough "), you are a
public official /public employee subject to the provisions of the Public Official and Employee
Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The Ethics Act would not prohibit you
from running for the office of Magisterial District Judge while serving as the Borough Police
Chief. However, the propriety of the proposed conduct has only been addressed under the
Ethics Act. The question of whether you may participate in or conduct a political or
election campaign while serving as the Borough Police Chief is governed by civil service
restrictions of the Borough Code, not the Ethics Act. See, 53 P.S. § 46190(6). Specifically
not addressed herein is the applicability of such civil service restrictions. It is
recommended that you obtain legal advice in that regard.
Pursuant to Section 1107(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, provided the requester has disclosed truthfully all the material
facts and committed the acts complained of in reliance on the Advice given.
Popovich, 06 -601
November 27, 2006
Page 4
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