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HomeMy WebLinkAbout07-588 BICKFORDTimothy A. Bowers, Esquire Tim Bowers Law Office 319 Mill Street Danville, PA 17821 Dear Mr. Bowers: ADVICE OF COUNSEL October 12, 2007 This responds to your letter of September 5, 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 present any prohibitions or restrictions upon a school district superintendent with regard to the school district contracting with an architectural firm that employs her husband. Facts: As Solicitor for the Danville Area School District ( "DASD "), you have been authorized by Susan Bickford, Ph.D. ( "Dr. Bickford "), the DASD Superintendent, to request an advisory from the State Ethics Commission on her behalf. You have submitted extensive facts, the material portions of which may be fairly summarized as follows. You state that in 2004, the DASD School Board ( "Board ") began to consider whether to refurbish certain elementary schools or close and consolidate such schools into a newly constructed school buildin . In August 2004, the Board awarded a contract to Robert L. Kimball & Associates "Kimball'), an architectural firm, to perform a feasibility study. You state that the ASD Superintendent at that time was Steven Keifer ("Keifer"). After Kimball completed the feasibility study and additional services requested by the Board, the Board approved the consolidation of three elementary buildings into one newly constructed school building, which approval occurred at a public meeting in July 2006. You state that based upon past satisfaction with Kimball, the Board negotiated a contract with Kimball to prepare design documents and provide other architectural services for the new school building. At a public meeting on April 10, 2007, the Board voted to contract with Kimball to provide the aforesaid services as to the new school building. You state that at this time, Keifer remained the DASD Superintendent. You state that on April 24, 2007, Keifer publicly announced that he would be leaving his position as DASD Superintendent effective June 29, 2007. The Board then 07 -588 Bowers, 07 -588 October 12, 2007 Page 2 began a search process to fill the vacancy. After publicly advertising the open position and conducting initial interviews, the Board selected three candidates, including Dr. Bickford, who underwent day -long interviews with the Board, faculty, staff, and the public. At an executive session on August 6, 2007, the Board discussed the merits of the candidates and then authorized the Board President to contact Dr. Bickford to make an offer of employment and negotiate terms of compensation. During a telephone conversation that evening, the Board President and Dr. Bickford reached an agreement as to terms of employment, and Dr. Bickford informed the Board President that her husband, Larry Bickford ( "Mr. Bickford "), is employed with Kimball as Senior Vice President for Sales. You state that when the Board President consulted with you the next day regarding potential conflicts, you advised him that Mr. Bickford's employment with Kimball would not prevent the hiring of Dr. Bickford. On August 14, 2007, the Board unanimously voted to hire Dr. Bickford for a term of three years. You state that in his position as Senior Vice President for Sales, Mr. Bickford develops sales strategies, sets sales goals, provides sales training, and assists personally in corporate sales focusing specifically in municipal, county, and state government sales. Mr. Bickford is a salaried employee and does not receive commissions. You state that Mr. Bickford is not assigned to the DASD project. You note that as DASD Superintendent, Dr. Bickford is responsible for duties set forth in Section 10 -1081 of the Public School Code, 24 P.S. § 10 -1081. You further note that Dr. Bickford, as Superintendent, has a seat on the Board and can speak on matters before the Board, but cannot vote on any matter. 24 P.S. § 10 -1081. Per the Public School Code, the affirmative vote of a majority of the members of the Board is required to enter into contracts of any kind where the amount involved exceeds one hundred dollars. 24 P.S. § 5 -508. You state that Dr. Bickford can make non - binding recommendations regarding DASD contracts. Richard B. Snodgrass ( "Snodgrass ") is employed with DASD as its Business Administrator and also serves as Secretary to the Board. You note that pursuant to Sections 4- 433(5) and 10- 1089(a) of the Public School Code, Snodgrass' duties as the DASD Business Administrator include general supervision of all the business affairs of the school district, subject to the instructions and direction of the board of school directors. 24 P.S. §§ 4- 433(5),10- 1089(a). You express your view that in her position as Superintendent, Dr. Bickford would be considered a "public official" and "public employee'i as those terms are defined by the Ethics Act, and that as such, she would be subject to the restrictions and prohibitions set forth in the Ethics Act. You further express your view that Kimball would be considered a business with which Dr. Bickford's husband is associated. Based upon the above submitted facts, you ask whether Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), would apply to restrict Dr. Bickford from having any supervisory or overall responsibility for the implementation or administration as to the contract between DASD and Kimball for the new school building since said contract was entered into prior to the commencement of Dr. Bickford's employment with DASD. If the restrictions of Section 1103(f) would apply to said contract, you ask that the Commission more clearly delineate such restrictions. You express your view that if Dr. Bickford would have a conflict of interest as to the DASD contract with Kimball, she could not authorize payments (which would require Board approval) or otherwise make determinations concerning the fulfillment of Kimball's legal obligations under the contract. You further express your view that since all design documents would require the Board's approval, there would be no restrictions as to Dr. Bickford's participation in the design process itself by reviewing drawings, Bowers, 07 -588 October 12, 2007 Page 3 meeting with committees, and providing suggestions and input concerning the form that the new school building would take. You pose additional inquiries based upon the following submitted facts. You state that during Dr. Bickford's term of office as Superintendent, DASD may wish to select Kimball to provide architectural services required for other DASD projects. You further state that any future contracts would be negotiated by the Business Administrator and accepted by the majority vote of the Board. Based upon the above submitted facts, you ask whether the provisions of Section 1103(0) would apply if a future contract with Kimball would be entered into by the Board and not by Dr. Bickford. You also ask whether the restrictions on Dr. Bickford's involvement with a DASD contract with Kimball would be the same restrictions as those that would apply to Dr. Bickford's involvement with the current contract for the new school building. If the restrictions on Dr. Bickford's involvement would vary between the current contract for the new school building and a future contract, you ask how such restrictions would vary. 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 advisory opinion may be given only as to prospective (future) conduct. To the extent that your inquiries relate to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiries relate to future conduct, your inquiries may and shall be addressed. As Superintendent of DASD, Dr. Bickford is a public official /public employee subject to the provisions of the Ethics Act. 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 Bowers, 07 -588 October 12, 2007 Page 4 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 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. If a business with which the public official /public employee or immediate family member is associated or a private customer /client would have a matter pending before the governmental body, the public official /public employee would generally have a conflict of interest as to such matter. Kannebecker, Opinion 92 -010; Miller, Opinion 89- 024. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89 -002. In each instance of a conflict of interest, the public official /public employee would be required to abstain fully from participation. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows: § 1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or Bowers, 07 -588 October 12, 2007 Page 5 65 Pa.C.S. § 1103(f). any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. The term "contract is defined in the Ethics Act as follows: § 1102. Definitions "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. The term shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 Pa.C.S. § 1102. Section 1103(f) does not operate to make contracting with the governmental body permissible where it is otherwise prohibited. Rather, where a public official /public employee, his spouse or child, or a business with which he, his spouse or child is associated, is otherwise appropriately contracting with the governmental body, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more, Section 1103(f) requires that an "open and public process" be observed as to the contract with the governmental body. Pursuant to Section 1103(f), an "open and public process" includes: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered; and (4) public disclosure of the contract awarded and offered and accepted. Section 1103(f) of the Ethics Act also requires that the public official /public employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. In applying the above provisions of the Ethics Act to the instant matter, you are advised that Dr. Bickford's spouse is a member of Dr. Bickford's "immediate family" as Bowers, 07 -588 October 12, 2007 Page 6 that term is defined in the Ethics Act. Kimball is a business with which Mr. Bickford is associated in his capacity as Senior Vice President for Sales. Pursuant to Section 1103(a) of the Ethics Act, Dr. Bickford, as DASD Superintendent, would general) have a conflict of interest in matters that would financially impact herself, her spouse, Kimball, or Kimball's client(s). See, Kannebecker, supra; Miller, supra. The restrictions of Section 1103(f) of the Ethics Act would not be applicable as to a contract between DASD and Kimball that was entered into at a time when Dr. Bickford was neither a public official nor a public employee of DASD. Thus, Section 1103(f) of the Ethics Act would not be applicable as to the aforesaid current contract between DASD and Kimball involving a new school building conditioned upon the assumption that at the time the contract was entered, Dr. Bickford was neither a public official nor a public employee of DASD. Cf., Burkhart, Advice 03 -535; Confidential Advice, 03 -546; Nicholson, Advice 04 -544. In this regard it is noted that although the submitted facts state that the contract was entered into prior to Dr. Bickford's appointment as DASD Superintendent, there is no indication in the submitted facts as to whether Dr. Bickford held a different position with DASD at the time the contract was entered. With respect to the current contract between DASD and Kimball involving a new school, Dr. Bickford would have a conflict of interest under Section 1103(a) of the Ethics Act as to matters that would financially impact Kimball, such as, for example, overseeing work performed by Kimball, reporting to the Board regarding Kimball's work, or authorizing payments to Kimball. Dr. Bickford would additionally have a conflict of interest as to performing activities related to the design process including, but not limited to, having input as to drawings, meeting with committees, and providing suggestions and input concerning the form the new school building will take, to the extent that Dr. Bickford's performance of such activities would financially benefit Kimball. In each instance of a conflict of interest, Dr. Bickford would be required to abstain fully from participation. Any contract renewals or future contract(s) between Kimball and DASD valued at $500 or more would be subject to the restrictions and requirements of Section 1103(f) of the Ethics Act to the extent that Dr. Bickford would remain a public official/public employee of DASD and Kimball would remain a business with which Dr. Bickford's spouse is associated. This conclusion would not vary regardless of whether the Board itself would enter into such contract(s). Under Section 1103(f) of the Ethics Act, Dr. Bickford would be prohibited from having any supervisory or overall responsibility for the implementation or administration of any such contract(s). 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 applicability of the Public School Code. Conclusion: As Superintendent for the Danville Area School District ( "DASD "), Susan Bickford, Ph.D. ( "Dr. Bickford ") would be considered 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. Dr. Bickford's spouse is a member of her immediate family. The firm of Robert L. Kimball & Associates ( "Kimball ") is a business with which Dr. Bickford's spouse is associated in his capacity as Kimball's Senior Vice President for Sales. The restrictions of Section 1103(f) of the Ethics Act would not be applicable as to a contract between DASD and Kimball that was entered into at a time when Dr. Bickford was neither a public official nor a public employee of DASD. With respect to the current contract between DASD and Kimball involving a new school, Dr. Bickford would have a conflict of interest under Section 1103(a) of the Ethics Act as to matters that would financially impact Kimball, such as, for example, overseeing work performed by Kimball, reporting to the Board regarding Kimball's work, or authorizing Bowers, 07 -588 October 12, 2007 Page 7 payments to Kimball. Dr. Bickford would additionally have a conflict of interest as to performing activities related to the design process including, but not limited to, having input as to drawings, meeting with committees, and providing suggestions and input concerning the form the new school building will take, to the extent that her performance of such activities would financially benefit Kimball. In each instance of a conflict of interest, Dr. Bickford would be required to abstain fully from participation. Any contract renewals or future contract(s) between Kimball and DASD valued at $500 or more would be subject to the restrictions and requirements of Section 1103(f) of the Ethics Act to the extent that Dr. Bickford would remain a public official /public employee with DASD and Kimball would remain a business with which Dr. Bickford's spouse is associated. This conclusion would not vary regardless of whether the Board itself would enter into such contract(s). Under Section 1103(f) of the Ethics Act, Dr. Bickford would be prohibited from having any supervisory or overall responsibility for the implementation or administration of any such contract(s). 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. 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