HomeMy WebLinkAbout08-506 PeriniDominick Perini
100 Mildred Street
Jessup, PA 18434
Dear Mr. Perini:
ADVICE OF COUNSEL
January 22, 2008
08 -506
This responds to your letter of December 10, 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
director with regard to providing disc jockey services for school dances through a
business owned by the school director and a member of his immediate family, when the
compensation for such services would not be paid by the school district.
Facts: As a newly - elected School Director for the Valley View School District
(" chool District "), located in Archbald, Lackawanna County, Pennsylvania, you request
an advisory from the State Ethics Commission based upon the following submitted
facts.
2007.
You state that you were sworn into office as a School Director on December 4,
In your private capacity, you and your daughter own and operate a disc jockey
"D.J. ") business on a part -time basis. You state that, for the past several years, your
D.J. business has been hired to perform at approximately eight School District student
functions per year, including six middle school dances, the semi, and the prom.
Middle school dances are organized and overseen by the Middle School Student
Council ( "Student Council "). The Student Council pays the $175.00 fee per performance
for your business to perform D.J. services at middle school dances. These fees are paid
in cash from door admission proceeds.
The fees for your business to perform D.J. services at the semi and prom are
paid through a high school activities account from funds generated by student
fundraisers. Checks from the student activities accounts are approved and signed by
the student fundraiser /council advisors, who are teachers. You state that your business
is not hired by the School District, nor is your business paid from School District or
Perini, 08 -506
January 22, 2008
Page 2
taxpayer money. You further state that the authorization to hire or pay for such D.J.
services does not come before the School District School Board at any time.
You would like for your business to continue to provide D.J. services for School
District student functions. You ask whether, given your status as a School Director, you
would be permitted: (1) to continue to perform such D.J. services on behalf of your
business, for compensation; and (2) to be a co -owner of a business that receives
payments as set forth above. If you would have a conflict of interest as to continuing to
provide such services, you ask what steps you must take in order to be permitted to
continue to provide such services.
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 a School Director for Valley View School District, you are a public official
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.
65 Pa.C.S. §§ 1103(a), (j).
(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.
Perini, 08 -506
January 22, 2008
Page 3
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.
"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.
The use of authority of office is not limited merely to voting, but extends 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.
In each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the
public official /public 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. 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, Pavlovic, Opinion
02 -005.
Perini, 08 -506
January 22, 2008
Page 4
Section 1103(f) of the Ethics Act 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
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.
65 Pa.C.S. § 1103(f).
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;
Perini, 08 -506
January 22, 2008
Page 5
(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.
It is administratively noted that the Public School Code of 1949 as amended
( "Public School Code ") provides in pertinent part:
3 -324. Not to be employed by or do business with
district; exceptions
(a) No school director shall, during the term for which he
was elected or appointed, as a private person engaged in
any business transaction with the school district in which he
is elected or appointed, be employed in any capacity by the
school district in which he is elected or appointed, or receive
from such school district any pay for services rendered to the
district except as provided in this act...
(c) It shall not be a violation of this section for a school
district to contract for the purchase of goods or services from
a business with which a school director is associated to the
extent permitted by and in compliance with 65 Pa.C.S. Ch.
11 (relating to ethics standards and financial disclosure).
24 P.S. §§ 3- 324(a), (c). On its face, Section 3- 324(a) of the Public School Code
prohibits a school director from receiving from the school district any pay for services
rendered to the school district except as provided by the Public School Code. Section
3- 324(c) of the Public School Code permits contracting between school districts and
businesses with which school directors are associated as long as the requirements of
the Ethics Act are observed.
In applying the above provisions of the Ethics Act to the instant matter, it is noted
that Section 1103(a) of the Ethics Act pertaining to conflicts of interests does not
prohibit public officials /public employees from having outside business activities or
employment; however, the public official /public employee may not use the authority of
his public position - -or confidential information obtained by being in that position - -for the
advancement of his own private pecuniary benefit or that of a business with which he is
associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited
under Section 1103(a) would include: (1) the pursuit of a private business opportunity in
the course of public action, Metrick, Order 1037; (2) the use of governmental facilities,
such as governmental telephones, postage, staff, equipment, research materials, or
other property, or the use of governmental personnel, to conduct private business
activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official
capacity as to matters involving the business with which the public official /public
employee is associated in his private capacity or private clients(s). Miller, Opinion 89-
024; Kannebecker, Opinion 92 -010.
The D.J. business that you and your daughter own would be considered a
business with which you and your daughter are associated. Therefore, pursuant to
Section 1103(a) of the Ethics Act, you would generally be prohibited from using the
authority of your public position, or confidential information accessed or received as a
result of being a School Director, to effectuate a private pecuniary benefit to yourself,
Perini, 08 -506
January 22, 2008
Page 6
your daughter, or the D.J. business through action favorable to you, your daughter, or
the D.J. business, or through a detriment to a competitor for the D.J work. See, Pepper,
Opinion 87 -008.
You have factually submitted that the payments your D.J. business receives for
performing D.J. services at the middle school dances are paid by Student Council from
middle school dance door admission proceeds. You have also factually submitted that
the payments that your D.J. business receives for performing D.J. services at the semi
and prom are paid through a high school activities account from funds generated by
student fundraisers. You have further factually submitted that your business is not hired
by the School District, none of the payments to your business come from School District
funds or taxpayer money, and the authorization to hire or pay for such D.J. services
does not come before the School District School Board at any time.
As noted above, an advisory only affords a defense to the extent the requester
has truthfully disclosed all of the material facts. You are cautioned that advisories under
the Ethics Act are fact - driven, and that the answer to your question would be different if
factually, you would be doing business with the School District.
Under the submitted facts, you are advised that to the extent neither you, your
daughter, nor your D.J. business would be contracting with the School District, or
entering into subcontracts with person(s) awarded contract(s) with the School District,
the restrictions and requirements of Section 1103(f) of the Ethics Act would not apply to
contract(s) for D.J. services through your business. Pursuant to Section 1103(a) of the
Ethics Act, you would generally have a conflict of interest as to matters before the
School District that would financially impact your D.J. business or its client(s), including
Student Council and other school - related organizations that would retain your services.
Additionally, given the submitted fact that checks from the student activities
accounts are approved and signed by the student fundraiser /council advisors, who are
teachers, you are advised that the potential would exist for you to have a conflict of
interest in matters pertaining to those teachers. Cf., Woodrinq, Opinion 90 -001; Elisco,
Opinion 00 -003; and Confidential Opinion, 05 -004. It is recommended that you seek
additional advice in that regard as particular issues /circumstances arise.
In each instance of a conflict of interest, you would be required to abstain fully
and to fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act.
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 School Director for the Valley View School District ( "School District "),
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. Your daughter would be considered
a member of your immediate family. The Disc Jockey ( "D.J.') business owned by you
and your daughter is a business with which you and your daughter are associated.
Pursuant to Section 1103(a) of the Ethics Act, you would generally be prohibited from
using the authority of your public position, or confidential information accessed or
received as a result of being a School Director, to effectuate a private pecuniary benefit
to yourself, your daughter, or the D.J. business through action favorable to you, your
daughter, or the D.J. business, or through a detriment to a competitor for the 1D.J work.
Under the submitted facts that: (1) your D.J. business performs D.J. services at the
School District's middle school, with the fees for such services being paid by Student
Council from middle school dance door admission proceeds; (2) your D.J. business
performs D.J. services at the School District's high school, with the fees for such
services being paid by a high school activities account from funds generated by student
Perini, 08 -506
January 22, 2008
Page 7
fundraisers; (3) your business is not hired by the School District; (4) none of the
payments to your business come from School District funds or taxpayer money; and (5)
the authorization to hire or pay for such D.J. services does not come before the School
District School Board at any time, you are advised as follows. To the extent neither you,
your daughter, nor your D.J. business would be contracting with the School District, or
entering into subcontracts with person(s) awarded contract(s) with the School District,
the restrictions and requirements of Section 1103(f) of the Ethics Act would not apply to
contract(s) for D.J. services through your business. Pursuant to Section 1103(a) of the
Ethics Act, you would generally have a conflict of interest as to matters before the
School District that would financially impact your D.J. business or its client(s), including
Student Council and other school - related organizations that would retain your services.
Given the submitted fact that checks from the student activities accounts are approved
and signed by the student fundraiser /council advisors, who are teachers, you are
advised that the potential would exist for you to have a conflict of interest in matters
pertaining to those teachers, and it is recommended that you seek additional advice in
that regard as particular issues /circumstances arise. In each instance of a conflict of
interest, you would be required to abstain fully and to fully satisfy the disclosure
requirements of Section 1103(j) of the Ethics Act.
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