Loading...
HomeMy WebLinkAbout10-562 Fochtman ADVICE OF COUNSEL April 2, 2010 Michele Fochtman 589 Hays Mill Road Meyersdale, PA 15552 10-562 Dear Ms. Fochtman: This responds to your letter dated January 28, 2010, received February 8, 2010, 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 present any prohibitions or restrictions upon a school director, whose school district is one of eight school districts participating in a technology center, with regard to applying for a job at the technology center. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts, the material portion of which may be fairly summarized as follows. You are a recently elected School Director for the Berlin Brothersvalley School District. You are also a teacher at Salisbury-Elk Lick School District. The Somerset County Technology Center (“Technology Center”) has eight participating school districts that utilize the Technology Center’s facilities and instruction. Each participating school district selects a representative and an alternate to serve on the Joint Operating Committee of the Technology Center. It is administratively noted that per the Technology Center’s website, the Berlin Brothersvalley School District is one of the eight school districts that participate in the Technology Center. You seek an advisory as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to applying for a job at the Technology Center. 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 Fochtman, 10-562 April 2, 2010 Page 2 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 Berlin Brothersvalley School District, you are a public official as that term is defined in the Ethics Act, and therefore you are 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 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 related to Section 1103(a) 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 Fochtman, 10-562 April 2, 2010 Page 3 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 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. Subject to certain statutory exceptions, 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 applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Section 1103(a) of the Ethics Act would not prohibit you from acting in your private capacity to apply for an employment position with the Technology Center. However, at such times as you would be employed by the Technology Center or would have a reasonable expectation of becoming employed by the Technology Center, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in your public capacity as a School Director in matters pertaining to the selection of a representative and/or alternate from the Berlin Brothersvalley School District to serve on the Joint Operating Committee of the Technology Center. This would be due to the fact that the Joint Operating Committee would exercise authority over you as an employee of the Technology Center. Cf., Arnold, Advice 09-502; Genard, Advice 07-601. As noted above, in each instance of a conflict of interest, you would be required to abstain fully from participation and in the instance of a voting conflict, to abstain fully and 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 Berlin Brothersvalley 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. Based upon the facts that the Berlin Brothersvalley School District is one of eight participating school districts that utilize the facilities and instruction of the Somerset County Technology Center (“Technology Center”), each participating school district selects a representative and an alternate to serve on the Joint Operating Committee of the Technology Center, and you are Fochtman, 10-562 April 2, 2010 Page 4 interested in applying for an employment position with the Technology Center, you are advised as follows. Section 1103(a) of the Ethics Act would not prohibit you from acting in your private capacity to apply for an employment position with the Technology Center. However, at such times as you would be employed by the Technology Center or would have a reasonable expectation of becoming employed by the Technology Center, pursuant to Section 1103(a) of the Ethics Act, you would have a conflict of interest in your public capacity as a School Director in matters pertaining to the selection of a representative and/or alternate from the Berlin Brothersvalley School District to serve on the Joint Operating Committee of the Technology Center. In each instance of a conflict of interest, you would be required to abstain fully from participation and in the instance of a voting conflict, to abstain fully and 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) 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. 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