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HomeMy WebLinkAbout08-538 O'ConnorWilliam D. O'Connor 701 Atkinson Lane Langhorne, PA 19047 Dear Mr. O'Connor: ADVICE OF COUNSEL April 18, 2008 08 -538 This responds to your letter dated March 8, 2008, by which you requested advice from the Pennsylvania 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 voting on the issue of whether to close a particular middle school in the school district, where: (1) the school director's daughter serves as a long-term substitute teacher at one of the school district's three other middle schools; and (2) the school director's daughter is in a pool of teachers who are eligible to fill the next vacant school district position that requires a certain teaching certification. Facts: As a School Director for the Neshaminy School District ( "School District "), located in Langhorne, Pennsylvania, you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. The School District School Board ( "School Board ") is considering the possibility of closing the Neshaminy Middle School due to a decrease in enrollment. The Neshaminy Middle School is one of four middle schools in the School District. The Neshaminy Middle School currently houses grades 6 through 9. Your daughter serves as a long -term substitute teacher in the School District. She currently works at a middle school other than the Neshaminy Middle School. You have submitted a copy of a letter to you dated March 6, 2008, from Louis T. Muenker, D.Ed. ( "Dr. Muenker"), Assistant Superintendent /Director of Human Resources for the School District. In said letter, Dr. Muenker states that your daughter is currently serving with the School District as a long -term substitute teacher in a Language Arts capacity, in which capacity she is certified to teach grades 7 through 12. Dr. Muenker notes that per the School District's contract with the local teachers' union, your daughter has been placed in a pool of teachers who hold the same certification (hereinafter referred to as the Pool "). Dr. Muenker states that assuming the teachers in the Pool receive satisfactory evaluations, they will be given right of first refusal for any future openings within the School District. Presently the Pool includes your daughter and five other teachers. O'Connor, 08 -538 April 18, 2008 Page 2 Dr. Muenker notes that the School District is not anticipating significant retirements or resignations in the area of certification held by your daughter. Dr. Muenker states that "[i]n the event that a [School District] middle school would close, there is a chance that the probability of available positions would be less than if all four middle schools remained open." March 6, 2008, Letter of Dr. Muenker, at paragraph 4. Dr. Muenker further states that under any circumstances, since your daughter does not have a contract with the School District, she would only be offered a position if there would be one available and she would be determined to be the most qualified candidate. Dr. Muenker further states that your daughter's performance during her long -term substitute work, as compared to the performance of others in the Pool, would be the primary factor in the School District administration's determination of whether your daughter would be selected to fill the next vacancy. You state that you are confident about your objectivity and you are interested in participating with the rest of the Members of the School Board in deciding the issue of whether to close Neshaminy Middle School. You state that you are aware that there could be the potential for a conflict of interest. However, you state that you don't believe that a conflict exists because your daughter currently is not a contracted employee with the School District, and she would have a "similar remote chance of employment" with the School District regardless of whether the School Board would decide to close or not to close Neshaminy Middle School. March 8, 2008, Letter of O'Connor, at paragraph paragraph 2. Based upon the above submitted facts, you ask whether you would have a conflict of interest with regard to voting on the issue of whether to close Neshaminy Middle School. 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 the Neshaminy 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. (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 O'Connor, 08 -538 April 18, 2008 Page 3 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. "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. In each instance of a conflict of interest, a public official /public employee would required to abstain fully from participation. The abstention requirement would not be limited to voting, but rather, would extend to any use of authority of office. O'Connor, 08 -538 April 18, 2008 Page 4 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. It is noted that the above statutory definition of "conflict" or "conflict of interest" contains two exclusions, referred to herein as the "de minimis" exclusion and the "class /subclass exclusion." The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburq, Order 900. In order for the class /subclass exclusion to apply, two criteria must be met: (1) the affected public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same degree" (in no way differently) than the other members of the class /subclass. 65 Pa.C.S. § 1102; see, Kablack, Opinion 02 -003; Graham, Opinion 95 -002 (citing Van Rensler, Opinion 90- 017); Rubenstein, Opinion 01 -007. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual /business in question and the other members of the class /subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. In applying Section 1103(a) of the Ethics Act to the facts that you have submitted, you are advised that your daughter is a member of your "immediate family" as that term is defined in the Ethics Act. Therefore, pursuant to Section 1103(a) of the Ethics Act, in your capacity as a School Director, you would generally have a conflict of interest in matters that would financially impact your daughter. In each instance of a conflict of interest, you would be required to abstain fully from participation. The abstention requirement would not be limited to voting, but rather, would extend to any use of authority of office. In each instance of a voting conflict, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Turning to your specific inquiry, you are advised as follows. The class /subclass exception would not appear to be applicable to the factual scenario you have presented. Under the submitted facts, members of the Pool would not be "similarly situated" due to the ranking /selection of the Pool members based upon performance. You are advised that if you would vote in favor of closing Neshaminy Middle School, such vote would not form the basis for a conflict of interest under the Ethics Act because any resulting financial impact upon your daughter would be in the nature of a financial detriment. O'Connor, 08 -538 April 18, 2008 Page 5 However, a vote against closing Neshaminy Middle School could form the basis for a conflict of interest for you. The question of whether such a conflict of interest would exist would hinge upon facts that have not been submitted. For example, the submitted facts do not indicate whether the closing of Neshaminy Middle School could impact your daughter's continued service as a long- term substitute with the School District. The submitted facts do not indicate to what extent contracted teachers from Neshaminy Middle School would be in competition with teachers in the Pool for any vacant positions in the School District. The submitted facts also do not indicate the order in which the teachers in the Pool would be offered a position based upon performance. Because the submitted facts are insufficient to conclusively determine whether you would have a conflict of interest as to a vote against closing Neshaminy Middle School, this advisory must necessarily be limited to providing the following general guidance as to that aspect of your inquiry. If a vote against closing Neshaminy Middle School would be reasonably anticipated to result in a private pecuniary benefit to your daughter, such as by preserving her ongoing service as a long -term substitute for the School District or by enhancing her prospects of obtaining a full -time position with the School District, then pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest and you would be prohibited from casting such a vote or otherwise using the authority of your public office to advance such an outcome. The ropriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Public School Code. Conclusion: As a School Director for the Neshaminy 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, who School as a long-term substitute teacher in the chool District, is a member of your "immediate family" as that term is defined in the Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, in your capacity as a School Director, you would generally have a conflict of interest in matters that would financially impact your daughter. In each instance of a conflict of interest, you would be required to abstain fully from participation. The abstention requirement would not be limited to voting, but rather, would extend to any use of authority of office. In the instance of a voting conflict, you would be required to abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Under the submitted facts, if you would vote in favor of closing Neshaminy Middle School, such vote would not form the basis for a conflict of interest under the Ethics Act because any resulting financial impact upon your daughter would be in the nature of a financial detriment. A vote against closing Neshaminy Middle School could form the basis for a conflict of interest for you, depending upon facts that have not been submitted. If a vote against closing Neshaminy Middle School would be reasonably anticipated to result in a private pecuniary benefit to your daughter, such as by preserving her ongoing service as a long-term substitute for the School District or by enhancing her prospects of obtaining a full -time position with the School District, then pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest and you would be prohibited from casting such a vote or otherwise using the authority of your public office to advance such an outcome. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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. O'Connor, 08 -538 April 18, 2008 Page 6 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