HomeMy WebLinkAbout11-516 Fennick
ADVICE OF COUNSEL
March 25, 2011
Daniel M. Fennick, Esquire
Anderson, Converse & Fennick, P.C.
1423 East Market Street
York, PA 17403
11-516
Dear Mr. Fennick:
This responds to your letter dated February 2, 2011, by which you requested an
advisory 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 individual
who serves as the president of the board of a charter elementary school and as the
president of the board of a charter middle school with regard to: (1) participating in
decisions by the aforesaid boards as to the potential merger/combining of such boards,
the opening of new programs for the community, or the staffing of positions associated
with such new programs; (2) engaging in activities related to such new programs; or (3)
applying for a position to set up and run such new programs.
Facts:
You have been authorized by Oscar G. Rossum, Sr. (“Mr. Rossum”) to
request an advisory from the Pennsylvania State Ethics Commission (“Commission”) on
his behalf. You have submitted extensive facts, the material portion of which may be
fairly summarized as follows.
Mr. Rossum currently serves as the President of the Board of Trustees of the
Lincoln Charter School (“Charter School 1”), an elementary school, and as the
President of the Board of Trustees of the Lincoln Charter Middle School (“Charter
School 2”). Charter School 1 and Charter School 2 are separate organizations located
within the City of York, Pennsylvania.
The Board of Trustees of Charter School 1 and the Board of Trustees of Charter
School 2 (hereinafter collectively referred to as “the Boards”) are considering merging or
combining in some fashion for financial and enrollment purposes. You state that
Charter School 2 has been searching for a lender to finance the purchase of land and
the costs of construction for a new school building, and it has become apparent that
Charter School 2 would be a much more attractive borrower if it had a combined credit
history with Charter School 1. In addition, since graduates of Charter School 1 do not
currently receive any admissions preference when they apply for admission to Charter
School 2, the Boards are considering combining the two schools so that admissions
preference for Charter School 2 could be given to students of Charter School 1.
Fennick, 11-516
March 25, 2011
Page 2
The Boards are also contemplating expanding their mission(s), and they may
want to open community day care centers or sponsor a non-profit community activity.
You state that it would not be strictly necessary for the Boards to merge in order to open
new programs, although it would be easier to finance and administer new programs
under the auspices of only one organization. You state that if the Boards would decide
to open new programs for the community, it would be necessary to hire an individual to
initiate and direct such programs.
You state that Mr. Rossum has taken a very significant leadership role in moving
forward with the purchase of land and construction of a new building for Charter School
2 and that he has been investigating community activities which could be the focus of
new Board sponsorship. You state that if the Boards would decide to expand their
mission(s), Mr. Rossum would be interested in taking an administrative role in both
initiating and supervising the new programs, but he would not be looking to supervise
the provision of educational services to the regular education students.
You state that the Boards must make decisions as to the above-referenced
issues, including whether the Boards should merge or combine in some other fashion;
whether new community programs should be instituted by the Board of the new
organization (“the New Board”); what position should be created to administer and
manage such new programs (hereinafter referred to as “the New Program Position”);
what the qualifications would be for the New Program Position; and who should be hired
for the New Program Position.
Based upon the above submitted facts, you pose the following questions:
(1) What role Mr. Rossum would be permitted to take as President of the
Boards with regard to decisions on the matters of Board restructuring, new
programming, and staffing positions associated with such programming;
(2) If Mr. Rossum would not be permitted to vote on the aforesaid matters,
whether he would be permitted to engage in activities related to new
programs such as investigating possible programs and sites, meeting with
community leaders, and the like;
(3) Whether Mr. Rossum would be required to resign from the Boards/New
Board before he could apply for the New Program Position;
(4) If Mr. Rossum would be required to resign from the Boards/New Board
before applying for the New Program Position, whether there would be a
set period of time that he would be required to wait before applying for
such position; and
(5) Whether Mr. Rossum could accept an appointment to the New Program
Position if said position would not be advertised by the Boards/New Board.
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 opinion/advice may be given only as to prospective (future) conduct. To
Fennick, 11-516
March 25, 2011
Page 3
the extent that your inquiry relates 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 inquiry relates to future conduct, your inquiry may and shall be addressed.
As President of the Board of Trustees of Charter School 1 and as President of
the Board of Trustees of Charter School 2, Mr. Rossum is a public official as that term is
defined in the Ethics Act, and therefore he is subject to the provisions of the Ethics Act.
If Mr. Rossum would become a Member of the New Board, in such position he would
likewise be 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 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
Fennick, 11-516
March 25, 2011
Page 4
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.
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 conflict of interest, a public official/public employee would
be required to abstain from participation, which would include voting unless one of the
statutory exceptions of Section 1103(j) of the Ethics Act would be applicable.
Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
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).
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
Fennick, 11-516
March 25, 2011
Page 5
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.
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.
Section 1103(g) of the Ethics Act is a “revolving door” provision, which provides:
§ 1103. Restricted activities
(g) Former official or employee.--
No former public official
or public employee shall represent a person, with promised
or actual compensation, on any matter before the
governmental body with which he has been associated for
one year after he leaves that body.
65 Pa.C.S. § 1103(g).
Having established the above general principles, your specific questions shall
now be addressed.
In response to your first and second questions, you are advised as follows.
Section 1103(a) of the Ethics Act would prohibit Mr. Rossum from using the authority of
his public position(s), or confidential information accessed by being in his public
position(s), in furtherance of an employment opportunity for himself. Given Mr.
Rossum’s interest in applying for the New Program Position, he generally would have a
conflict of interest with regard to: (1) participating in any matter(s) before any of the
aforesaid Board(s), including but not limited to decisions on Board restructuring, new
programming, and staffing positions associated with such programming; or (2) engaging
in activities related to new programs such as investigating possible programs and sites,
meeting with community leaders, and the like, to the extent that such would further the
creation of the New Program Position or his own prospects of obtaining employment in
the New Program Position. In each instance of a conflict of interest, Mr. Rossum would
be required to abstain fully from participation and in the instance of a voting conflict, to
abstain fully and to satisfy the disclosure requirements of Section 1103(j) of the Ethics
Act.
With regard to your third and fourth questions, you are advised as follows.
Section 1103(a) of the Ethics Act would not require Mr. Rossum to resign from any of
the aforesaid Board(s) before he could apply for the New Program Position. While
serving on any of the aforesaid Board(s), Mr. Rossum generally would have a conflict of
interest in matters pertaining to the New Program Position, including but not limited to
determining the necessary qualifications for the New Program Position, reviewing
applications, or screening or interviewing applicants. In each instance of a conflict of
interest, Mr. Rossum would be required to abstain fully from participation and in the
instance of a voting conflict, to abstain fully and to satisfy the disclosure requirements of
Section 1103(j) of the Ethics Act.
If Mr. Rossum would resign from the Boards/New Board before applying for the
New Program Position, Section 1103(g) of the Ethics Act would not prohibit him from
applying for or being appointed to such position. The Commission has determined that
Section 1103(g) of the Ethics Act does not prohibit the rehiring of the former public
official/public employee provided that a true public employment relationship exists. See,
McGlathery, Opinion 00-004; Long, Opinion 97-010; Confidential Opinion, 93-005.
Fennick, 11-516
March 25, 2011
Page 6
As to your fifth question, the submitted facts are insufficient to enable a
conclusive determination as to whether the restrictions and requirements of Section
1103(f) would be applicable. It is not known from the submitted facts whether and at
what time(s) Mr. Rossum would be serving on whatever Board(s) would be filling the
New Program Position. Therefore, you are advised that the prudent course of action
would be to seek a Supplemental Advice as the facts develop further, or, alternatively,
to observe and satisfy the restrictions and requirements of Section 1103(f) to avoid a
potential issue in that regard.
Finally, it is administratively noted that Section 17-1715-A(12) of the Charter
School Law provides as follows:
§ 17-1715-A. Charter school requirements
Charter schools shall be required to comply
with the following provisions:
…
(12) A person who serves as an administrator for a
charter school shall not receive compensation from another
charter school or from a company that provides
management or other services to another charter school.
The term “administrator” shall include the chief executive
officer of a charter school and all other employes of a charter
school who by virtue of their positions exercise management
or operational oversight responsibilities. A person who
serves as an administrator for a charter school shall be a
public official under 65 Pa.C.S. Ch. 11 (relating to ethics
standards and financial disclosure). A violation of this clause
shall constitute a violation of 65 Pa.C.S. § 1103(a) (relating
to restricted activities), and the violator shall be subject to
the penalties imposed under the jurisdiction of the State
Ethics Commission.
24 P.S. § 17-1715-A(12). You are advised that to the extent Mr. Rossum would
become an administrator for a charter school, he would be prohibited from receiving
compensation from another charter school or from a company that provides
management or other services to another charter school.
The propriety of the proposed conduct has only been addressed under the Ethics
Act in conjunction with Section 17-1715-A(12) of the Charter School Law, 24 P.S. § 17-
1715-A(12). The applicability of any other statute, code, ordinance, regulation or code
of conduct has not been considered.
Conclusion:
As President of the Board of Trustees of the Lincoln Charter School
(“Charter School 1”), an elementary school, and as President of the Board of Trustees
of the Lincoln Charter Middle School (“Charter School 2”), Oscar G. Rossum, Sr. (“Mr.
Rossum”) is 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 submitted facts
that: (1) Charter School 1 and Charter School 2 are separate organizations located
within the City of York, Pennsylvania; (2) the Board of Trustees of Charter School 1 and
the Board of Trustees of Charter School 2 (hereinafter collectively referred to as “the
Boards”) are considering merging or combining in some fashion for financial and
enrollment purposes; (3) the Boards are also contemplating expanding their mission(s),
and they may want to open community day care centers or sponsor a non-profit
community activity; (4) it would not be strictly necessary for the Boards to merge in
order to open new programs, although it would be easier to finance and administer new
Fennick, 11-516
March 25, 2011
Page 7
programs under the auspices of only one organization; (5) if the Boards would decide to
open new programs for the community, it would be necessary to hire an individual to
initiate and direct such programs; (6) Mr. Rossum has taken a very significant
leadership role in moving forward with the purchase of land and construction of a new
building for Charter School 2, and he has been investigating community activities which
could be the focus of new Board sponsorship; (7) if the Boards would decide to expand
their mission(s), Mr. Rossum would be interested in taking an administrative role in both
initiating and supervising the new programs, but he would not be looking to supervise
the provision of educational services to the regular education students; and (8) the
Boards must make decisions as to the above-referenced issues, including whether the
Boards should merge or combine in some other fashion; whether new community
programs should be instituted by the Board of the new organization (“the New Board”);
what position should be created to administer and manage such new programs
(hereinafter referred to as “the New Program Position”); what the qualifications would be
for the New Program Position; and who should be hired for the New Program Position,
you are advised as follows.
If Mr. Rossum would become a Member of the New Board, in such position he
would be a public official subject to the provisions of the Ethics Act.
Section 1103(a) of the Ethics Act would prohibit Mr. Rossum from using the
authority of his public position(s), or confidential information accessed by being in his
public position(s), in furtherance of an employment opportunity for himself. Given Mr.
Rossum’s interest in applying for the New Program Position, he generally would have a
conflict of interest with regard to: (1) participating in any matter(s) before any of the
aforesaid Board(s), including but not limited to decisions on Board restructuring, new
programming, and staffing positions associated with such programming; or (2) engaging
in activities related to new programs such as investigating possible programs and sites,
meeting with community leaders, and the like, to the extent that such would further the
creation of the New Program Position or his own prospects of obtaining employment in
the New Program Position. Section 1103(a) of the Ethics Act would not require Mr.
Rossum to resign from any of the aforesaid Board(s) before he could apply for the New
Program Position. While serving on any of the aforesaid Board(s), Mr. Rossum
generally would have a conflict of interest in matters pertaining to the New Program
Position, including but not limited to determining the necessary qualifications for the
New Program Position, reviewing applications, or screening or interviewing applicants.
In each instance of a conflict of interest, Mr. Rossum would be required to abstain fully
from participation and in the instance of a voting conflict, to abstain fully and to satisfy
the disclosure requirements of Section 1103(j) of the Ethics Act. If Mr. Rossum would
resign from the Boards/New Board before applying for the New Program Position,
Section 1103(g) of the Ethics Act would not prohibit him from applying for or being
appointed to such position. As for the potential applicability of Section 1103(f) of the
Ethics Act, the submitted facts are insufficient to enable a conclusive determination as
to whether the restrictions and requirements of Section 1103(f) would be applicable.
You are advised that the prudent course of action would be to seek a Supplemental
Advice as the facts develop further, or, alternatively, to observe and satisfy the
restrictions and requirements of Section 1103(f) to avoid a potential issue in that regard.
You are further advised that to the extent Mr. Rossum would become an
administrator for a charter school, he would be prohibited from receiving compensation
from another charter school or from a company that provides management or other
services to another charter school.
The propriety of the proposed conduct has only been addressed under the Ethics
Act in conjunction with Section 17-1715-A(12) of the Charter School Law, 24 P.S. § 17-
1715-A(12). The applicability of any other statute, code, ordinance, regulation or code
of conduct has not been considered.
Fennick, 11-516
March 25, 2011
Page 8
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