HomeMy WebLinkAbout07-529 BaujanJohn C. Prevoznik, Esquire
47 South Courtland Street
East Stroudsburg, PA 18301
Dear Mr. Prevoznik:
ADVICE OF COUNSEL
May 3, 2007
07 -529
This responds to your two letters dated March 22, 2007, 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 impose any prohibitions or restrictions upon a Chief of
Police of a Regional Police Commission with regard to: (1) utilizing cell phones issued
by the Regional Police Commission for personal purposes; or (2) accepting goods or
services provided by the public or merchants for free or at a reduced cost.
Facts: As Solicitor for the Stroud Area Regional Police Commission ( "Police
ommission "), you have been authorized by Chief of Police John Baujan to request an
advisory from the State Ethics Commission on his behalf. You first pose a set of
specific inquiries based upon the following facts.
The Police Commission issues cell phones to some members of the police force,
detectives, and administrative staff. The cell phones, which are issued through Nextel,
can also be used as walkie talkies. You state that the walkie talkie feature is used often
in police work. The cell phone plan provides for unlimited use of the walkie talkie
feature as part of the monthly cost of the phone.
You state that each cell phone has an allotted set of phone minutes. The allotted
phone minutes for the phones are pooled, such that if one phone goes over its allotted
minutes, it may tap into the minutes of another phone without additional cost. You state
that very rarely, if ever, has the total number of allotted minutes been exceeded, and
that each monthly bill has thus remained set at the contracted rate.
You pose the following specific inquiries:
1. Whether the Ethics Act would permit Chief Baujan and /or administrative
staff to utilize Police Commission cell phones for personal purposes as
well as business purposes.
2. Whether there would be an amount of cell phone usage that would be
considered de minimis or whether an individual would be permitted to
Prevoznik/Baulan, 07 -529
May 3, 2007
Page 2
utilize a private phone as opposed to a Police Commission cell phone for
personal use during work hours.
3. Whether Chief Baujan would avoid transgressing the Ethics Act if he
would reimburse the cell phone plan for the percentage of personal use of
a Police Commission cell phone as averaged against the total use of the
phone.
You next pose an inquiry based upon the following statement from Chief Baujan:
As Chief of Police, I am faced with a situation that is
continuing to occur for most, if not all of [the] police agencies
in Pennsylvania. At this time I am seeking guidance on
policies for both the administrative staff, as well as a basis to
extrapolate a policy for all officers. In a small community
such as ours, a police officer is often confronted with an offer
for free services or goods, such as coffee, meals, etc. Often
times, services or goods are provided at a reduced rate, as
opposed to no cost.
Advisory request letter of March 22, 2007, at 1.
You note that it is Chief Baujan's opinion that public servants may not ethically
accept such goods or services free of charge. You ask whether the Ethics Act would
impose any prohibitions or restrictions upon Chief Baujan, his administrative staff, or
Police Commission officers with regard to accepting goods or services from the public
for free or at reduced rates. In this regard, you question whether the propriety of
accepting such benefits would be dependent upon whether an individual would be in
uniform or off duty at the time the benefit(s) would be received.
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.
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. In this matter, you have not established that you have been authorized by
any administrative staff members or police officers of the Police Commission to request
an advisory as to their conduct. Additionally, there is no indication that you have been
authorized by a majority vote of the Police Commission to request an advisory as to the
conduct of the Police Commission's administrative staff members or police officers.
Therefore, this advisory must necessarily be limited to addressing only Chief Baujan's
prospective conduct.
Chief Baujan is a public official /public employee subject to the provisions of 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.
Prevoznik/Baulan, 07 -529
May 3, 2007
Page 3
(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 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.
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. In each
Prevoznik/Baulan, 07 -529
May 3, 2007
Page 4
instance of a conflict of interest, a public official /public employee is required to abstain
fully from participation.
Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence,
provide as follows:
§ 1103. Restricted activities
(b) Seeking improper influence. —No person shall
offer or give to a public official, public employee or nominee
or candidate for public office or a member of his immediate
family or a business with which he is associated, anything of
monetary value, including a gift, loan, political contribution,
reward or promise of future employment based on the
offeror's or donor's understanding that the vote, official
action or judgment of the public official or public employee or
nominee or candidate for public office would be influenced
thereby.
(c) Accepting improper influence. —No public
official, public employee or nominee or candidate for public
office shall solicit or accept anything of monetary value,
including a gift, loan, political contribution, reward or promise
of future employment, based on any understanding of that
public official, public employee or nominee that the vote,
official action or judgment of the public official or public
employee or nominee or candidate for public office would be
influenced thereby.
65 Pa. C. S. §§ 1103(b), (c).
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.
Having established the above general principles, your specific inquiries shall be
addressed.
In applying Section 1103(a) of the Ethics Act to your question involving personal
use of Police Commission cell phones, it is noted that the use of government staff, time,
equipment, facilities, or property for non - governmental purposes— including business,
personal, or political purposes —is generally prohibited and may form the basis for a
violation of Section 1103(a) of the Ethics Act. See, e.q., Confidential Opinion, 05 -001;
Heck, Order 1251, Holt, Order 1153 (business purposes); Moore, Order 1317, Meduka,
Order 1277, Sullivan, Order 1245, Dovidio, Order 1202 (personal purposes); Habay,
Order 1313, Livingston, Order 1030, Rockefeller, Order 1004, Freind, Order 800
(political purposes). The State Ethics Commission has long held that government
offices, facilities, equipment, and personnel are to be used for governmental purposes
and not for private, business or campaign /re- election activities. See, Smythe, Order
1121; Rakowsky, Order 943; Eck, Order 787; Freind, supra; Ferlo, lion 97 -005.
You are advised that pursuant to Section 1103(a) of the Ethics Act, a public
official /public employee is generally prohibited from using a government cell phone
and /or government time for personal matters. See, Young, Order 1378; Bryant, Order
1367; Goldinger, Order 1340.
Prevoznik/Baulan, 07 -529
May 3, 2007
Page 5
Although making personal telephone calls on government cell phones and /or on
government time would clearly be a non - governmental use of government equipment
and /or time, you are advised that it would be possible to engage in such conduct within
strict limits that would prevent a violation of the Ethics Act from occurring. This is
because the statutory definition of "conflict" or "conflict of interest" contains an
exclusion, hereinafter referred to as the "de minimis" exclusion, which precludes a
finding of a conflict of interest as to an action having a de minimis (insignificant)
economic impact. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth.
2004); Kolb, Order 1322; Schweinsburg, Order 900; Dennis, Opinion 07 -003;
Confidential Opinion, 05 -001. A straightforward application of the de minimis exclusion
to the question that you have posed necessitates the conclusion that Section 1103(a) of
the Ethics Act would not prohibit Chief Baujan from using Police Commission cell
phones and /or time on a very limited basis for personal telephone calls based upon the
condition that the use of government equipment and time for non - governmental purposes
would be so limited as to have a de minimis economic impact.
The Commission has determined the applicability of the de minimis exclusion on
a case -by -case basis, considering all relevant circumstances. In the past, the
Commission has found amounts ranging from $2 to approximately $500 to be de
minimis. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004).
You are cautioned that an economic impact may aggregate over time, rather than be
limited to a particular increment of time such as a month or year. Confidential Opinion,
05 -001.
Of course, it is never advisable for a public official or public employee to take
actions that could place him in jeopardy of violating the Ethics Act, and the particular
danger of the proposed conduct is that it could escalate beyond acceptable limitations.
In order to maintain controls over the proposed conduct, it would be advisable to have
written policies in place defining the limits of such conduct.
Turning to the question of whether Chief Baujan would avoid transgressing the
Ethics Act if he would reimburse the cell phone plan for the percentage of personal use
of a Police Commission cell phone as averaged against the total use of the phone, you
are advised as follows. The submitted facts are insufficient to establish whether,
despite such reimbursement, a significant private pecuniary benefit would result to Chief
Baujan through savings of out -of- pocket expenses related to the purchase of a cell
phone or execution of a contract for a cell phone plan. Therefore, the submitted facts
are insufficient to enable a conclusive determination as to whether the proposed
reimbursement arrangement would be sufficient to avoid a conflict of interest under
Section 1103(a) of the Ethics Act.
In response to your second inquiry, you are advised that if Chief Baujan would
accept goods or services from the public or merchants for free or at a reduced cost,
such would generally constitute gifts or transportation /lodging /hospitality received in
connection with public office, regardless of whether Chief Baujan would be in uniform at
the time. There is no per se prohibition under the Ethics Act as to the receipt of true,
"no- strings- attached" gifts or transportation /lodging /hospitality by a public official /public
employee. See, Cooper, Opinion 92 -009. However, a gift or
transportation /lodging /hospitality may form the basis for a violation of Section 1103(a) of
the Ethics Act if the public official /public employee takes action in furtherance of the
interests of the donor, or of Section 1103(b)/(c) of the Ethics Act if the gift is based upon
an understanding that the vote, official action or judgment of the public official /public
employee will be influenced thereby. See, e.g., Kasaback, Order 993; Helsel, Order
801; Volpe, Order 579 -R; and Smith, Order 578 -R.
In Helsel, Order 801, the State Ethics Commission held that a School Director
violated Section 3(a) of the State Ethics Act (Act 170 of 1978) by using public office to
obtain a financial gain for himself and members of his immediate family by supporting or
Prevoznik/Baulan, 07 -529
May 3, 2007
Page 6
voting for vendors as to school district contracts in return for gifts or gratuities. The
Commission further held that Helsel violated Section 3(b) of the Ethics Act by soliciting
or receiving gifts or gratuities of value from vendors who held school district contracts
based upon the understanding that his vote, official action or judgment would be
influenced thereby.
In Volpe, Order 579 -R and Smith, Order 578 -R, township supervisors were found
to have violated Section 3(a) of the Ethics Act by using office to obtain an all expense
paid trip to Europe for two weeks for themselves and various family members from a
developer who had matters pending before the township. Volpe and Smith were also
found to have violated Section 3(b) of the Ethics Act in that they received the trip to
Europe based upon the understanding that it would influence their action as township
supervisors relative to matters that were pending before the township by the developer.
Recently, in Espenshade, Order 1387, the State Ethics Commission held, inter
alia, that a Deputy Director and Chief of Operations for the Pennsylvania Department of
Military and Veterans Affairs ( "DMVA ") violated Section 1103(a) of the Ethics Act when
he received various gifts and gratuities of significant value from a Commonwealth
vendor as to which he had oversight and official involvement. Such gifts included, for
example, specialty crabs that the vendor flew in from Seattle on three separate
occasions for private parties /picnics hosted by the DMVA Deputy Director /Chief of
Operations at his residence. See also, Munford, Order 1390.
While the acceptance of a gift of de minimis (insignificant) value would not, in and
of itself, create a conflict of interest as to action involving the donor (see, e.q., Stieh,
Advice 93 -503), the decision as to whether a conflict of interest is presented by the
receipt of a gift or transportation /lodging /hospitality is determined on a case -by -case
basis.
Thus, although the Ethics Act would not preclude Chief Baujan from accepting
no- strings- attached gifts or transportation /lodging /hospitality he could, depending upon
the value of such items received, have conflicts of interest in matters involving the
donors. In each instance of a conflict of interest, Chief Baujan would be required to
abstain fully from participation.
Pursuant to Sections 1105(b)(6) -(7) of the Ethics Act, 65 Pa.C.S. §§ 1105(b)(6)-
(7), Chief Baujan would be required to disclose on his Statement of Financial Interests
forms for each calendar year: (1) the name and address of the source and the amount
of any gift or gifts valued in the aggregate at $250 or more and the circumstances of
each gift; and (2) the name and address of the source and the amount of any payment
for or reimbursement of actual expenses for transportation and lodging or hospitality
received in connection with public office or employment where such actual expenses
would exceed $650 in the aggregate. You are advised that meals and beverages would
constitute hospitality rather than gifts. See, 65 Pa.C.S. §§ 1102, 1303 -A.
Parenthetically, it is noted that you state that the purpose of this aspect of the
advisory request is to allow Chief Baujan to develop a policy for both his administrative
staff and his officers when dealing with the public and in particular, merchants who
desire to garner goodwill with the police force by offering goods or services for free or at
a reduced cost. In this regard, you are advised that the Ethics Act includes the following
provisions:
§ 1111. Supplemental provisions
Any governmental body may adopt requirements to
supplement this chapter, provided that no such requirements
shall in any way be less restrictive than the chapter.
§ 1112. Conflict of law
Prevoznik/Baulan, 07 -529
May 3, 2007
Page 7
if the provisions of this chapter conflict with any other
statute, ordinance, regulation or rule, the provisions of this
chapter shall control.
65 Pa. C. S. §§ 1111 -1112.
Section 1111 of the Ethics Act specifically permits governmental bodies to adopt
restrictions supplementing those of the Ethics Act, as long as such supplemental
restrictions are not less restrictive than those of the Ethics Act. Section 1112 provides
that in the event of a conflict between the provisions of the Ethics Act and any other
statute, ordinance, regulation or rule, the provisions of the Ethics Act shall control.
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 of the Stroud Area Regional Police Commission
( "Police Commission "), John Baujan ( "Chief Baujan") is 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. Pursuant to Section 1103(a) of the Ethics Act, a public
official /public employee is generally prohibited from using a government cell phone
and /or government time for personal matters. Section 1103(a) of the Ethics Act would
not prohibit Chief Baujan from using Police Commission cell phones and /or time on a
very limited basis for personal telephone calls based upon the condition that the use of
government equipment and time for non - governmental purposes would be so limited as
to have a de minimis economic impact. The submitted facts are insufficient to enable a
conclusive determination as to whether a proposed arrangement whereby Chief Baujan
would reimburse the cell phone plan for the percentage of personal use of a Police
Commission cell phone as averaged against the total use of the phone would be
sufficient to avoid a conflict of interest under Section 1103(a) of the Ethics Act.
If Chief Baujan would accept goods or services from the public or merchants for
free or at a reduced cost, such would generally constitute gifts or transportation /lodging/
hospitality received in connection with public office, regardless of whether Chief Baujan
would be in uniform at the time. Although the Ethics Act would not preclude Chief
Baujan from accepting no- strings - attached gifts or transportation /lodging /hospitality he
could, depending upon the value of such items received, have conflicts of interest in
matters involving the donors. In each instance of a conflict of interest, Chief Baujan
would be required to abstain fully from participation.
Pursuant to Sections 1105(b)(6) -(7) of the Ethics Act, Chief Baujan would be
required to disclose on his Statement of Financial Interests forms for each calendar
year: (1) the name and address of the source and the amount of any gift or gifts valued
in the aggregate at $250 or more and the circumstances of each gift; and (2) the name
and address of the source and the amount of any payment for or reimbursement of
actual expenses for transportation and lodging or hospitality received in connection with
public office or employment where such actual expenses would exceed $650 in the
aggregate. Meals and beverages would constitute hospitality rather than gifts.
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 requester has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
Prevoznik/Baulan, 07 -529
May 3, 2007
Page 8
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,
Robin M. Hittie
Chief Counsel