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HomeMy WebLinkAbout08-567 LewisMichael E. Lewis 30 Spanogle Avenue Lewistown, PA 17044 Dear Mr. Lewis: ADVICE OF COUNSEL August 13, 2008 08 -567 This responds to your letter of July 10, 2008, and your faxed transmission of August 11, 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.C.S. § 1101 et seq., would impose any prohibitions or restrictions upon an assistant director of a career and technology center (area vocational - technical school) with regard to simultaneously serving as a school director in one of the participating school districts. Facts: As Assistant Director of the "Mifflin- Juniata Career and Technology Center" ("MJCTC "), you request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. The MJCTC is an area vocational - technical school that was formed by the Mifflin County School District and the Juniata County School District. The governing body of the MJCTC is referred to as the "Joint Operating Committee" ( "JOC "). The JOC is comprised of school directors from both of the aforesaid sending districts. Four of the nine members of the Mifflin County School District Board of Directors serve as JOC members. As Assistant Director of the MJCTC, you serve as both a school principal and as a central office administrator. You also attend and participate in all JOC meetings. You have submitted a copy of the job description for the Assistant Director of the MJCTC. Your duties include: • Working with the principals /assistant principals at each sending high school to develop a unified discipline policy and ensure that consistent discipline is enforced; • Supervising the accounting of accurate records, and completing annual reports on various matters; • Maintaining and updating teacher files and records on Act 48, and coordinating all MJCTC Act 48 activities; Lewis, 08 -567 August 13, 2008 Page 2 • Reporting to the JOC and making a presentation at each JOC meeting; • Assisting the Director in coordination and supervision of maintenance /custodial personnel and overseeing the general maintenance of the building; and • Assisting the Director in coordination and supervision of project and construction management, maintenance, grounds and contracted services. You state that you are interested in running for office as a Mifflin County School Director. Based upon the submitted facts, you ask whether the Ethics Act would permit you to serve as a School Director for the Mifflin County School District while simultaneously being employed as Assistant Director of the MJCTC. 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 Assistant Director of the MJCTC, you are a "public employee" subject to the provisions of the Ethics Act. If you would become a School Director of the Mifflin County School District, you would be, in that capacity, 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 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 Lewis, 08 -567 August 13, 2008 Page 3 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 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 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. Pavlovic, Opinion 02 -005. In applying the above provisions of the Ethics Act to the question of simultaneous service, it is initially noted that the General Assembly has the constitutional power to declare by law which offices are incompatible. Pa. Const. Art. 6, § 2. There does not appear to be any statutorily - declared incompatibility precluding simultaneous service in the positions in question. Turning to the question of conflict of interest, where simultaneous service would place the public official /public employee in a continual state of conflict, such as where in one position he would be accounting to himself in another position on a continual basis, there would be an inherent conflict. (See, McCain, Opinion 02 -009). Where an inherent conflict would exist, it would appear to be impossible, as a practical matter, for the public Lewis, 08 -567 August 13, 2008 Page 4 official /public employee to function in the conflicting positions without running afoul of Section 1103(a). Absent a statutorily - declared incompatibility or an inherent conflict under Section 1103(a), the Ethics Act would not preclude an individual from simultaneously serving in more than one position, but in each instance of a conflict of interest, the individual would be required to abstain and, in each instance of a voting conflict, to abstain and satisfy the disclosure requirements of Section 1103(j) as set forth above. In this case, based upon the facts that have been submitted, there does not appear to be an inherent conflict that would preclude simultaneous service as Assistant Director of the MJCTC and a School Director of the Mifflin County School District. Cf., Nalesnik, Advice 05 -550; Bohn, Advice 97 -522. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j) of the Ethics Act. Should a situation arise where the use of authority of public office /public employment or confidential information received as a result of holding the aforesaid public positions would result in a prohibited private pecuniary benefit, a conflict of interest would arise. In each instance of a conflict of interest, you would be required to abstain fully, and in each instance of a voting conflict, you would be required to abstain and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act as set forth above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Public School Code of 1949. Conclusion: As Assistant Director of the "Mifflin- Juniata Career and Technology Center" ("MJCTC "), an area vocational - technical school that was formed by the Mifflin County School District and the Juniata County School District, you are a "public employee" subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. If you would become a School Director of the Mifflin County School District, you would be, in that capacity, a "public official" subject to the provisions of the Ethics Act. Based upon the submitted facts that: (1) the governing body of the MJCTC, which is referred to as the "Joint Operating Committee" ( "JOC "), is comprised of school directors from both of the aforesaid sending districts; (2) four of the nine members of the Mifflin County School District Board of Directors serve as JOC members; (3) as Assistant Director of the MJCTC, you serve as both a school principal and as a central office administrator, and you attend and participate in all JOC meetings, you are advised as follows. You may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve in the positions of Assistant Director of the MJCTC and a School Director of the Mifflin County School District, subject to the restrictions, conditions and qualifications set forth above. Should a situation arise where the use of authority of public office /public employment or confidential information received as a result of holding the aforesaid public positions would result in a prohibited private pecuniary benefit, a conflict of interest would arise. In each instance of a conflict of interest, you would be required to abstain fully, and in each instance of a voting conflict, you would be required to abstain and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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. This letter is a public record and will be made available as such. Lewis, 08 -567 August 13, 2008 Page 5 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