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HomeMy WebLinkAbout11-528 Quinn ADVICE OF COUNSEL May 24, 2011 Timothy J. Quinn, Ed.D. Superintendent Methacton School District Farina Education Center 1001 Kriebel Mill Road Eagleville, PA 19403-1048 11-528 Dear Dr. Quinn: This responds to your letter dated April 5, 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 elementary school principal with regard to simultaneously serving as a supervisor for the township in which the elementary school is located. Facts: You have been authorized by Jason Sorgini (“Mr. Sorgini”) to request an advisory from the Pennsylvania State Ethics Commission on his behalf based upon submitted facts that may be fairly summarized as follows. Mr. Sorgini is employed with the Methacton School District (“School District”) as the Principal of the Eagleville Elementary School (“Elementary School”). The Elementary School is located in Lower Providence Township (“Township”). You state that Mr. Sorgini is a Township resident and that he is running for the office of Township Supervisor. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any prohibitions or restrictions upon Mr. Sorgini with regard to simultaneously serving as the Elementary School Principal and a Township Supervisor. 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. Preliminarily, it is noted that the submitted facts do not include an official job Quinn, 11-528 May 24, 2011 Page 2 description for Mr. Sorgini’s position as the Principal of the Elementary School. This advice assumes, without deciding, that in his capacity as the Elementary School Principal, Mr. Sorgini is a public employee subject to the Ethics Act. See, 51 Pa. Code § 11.1, “public employee,” subparagraph (iv)(F) (principals are generally considered “public employees”). If Mr. Sorgini would be elected as a Township Supervisor, upon assuming said position, he would in that capacity be a public official subject to 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 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 Quinn, 11-528 May 24, 2011 Page 3 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. "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. "Political subdivision." Any county, city, borough, incorporated town, township, school district, vocational school, county institution district, and any authority, entity or body organized by the aforementioned. 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. 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. Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. 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 as the Elementary School Principal and a Township Supervisor. Quinn, 11-528 May 24, 2011 Page 4 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 official/public employee to function in the conflicting positions without running afoul of Section 1103(a) of the Ethics Act. 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. However, 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 Mr. Sorgini’s proposed simultaneous service as the Elementary School Principal and a Township Supervisor. Consequently, such simultaneous service would be permitted within the parameters of Sections 1103(a) and 1103(j) of the Ethics Act and expressly conditioned upon Mr. Sorgini’s performing the duties of both positions without an overlap of time. If Mr. Sorgini would be required to work or serve particular hours in either position, then pursuant to Section 1103(a) of the Ethics Act, he could not perform the duties of the other position during those same hours. Cf., Bornstein, Order 1463; Confidential Advice, 10-602; Laub, Advice 06-519. 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 exist. In each instance of a conflict of interest, Mr. Sorgini would be required to abstain fully 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. However, because the School District is a “political subdivision” and not a “business” as defined by the Ethics Act, Mr. Sorgini would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Township Board of Supervisors that would financially impact the School District but that would not financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. A pecuniary benefit flowing solely to a governmental entity would not form the basis for a conflict of interest under Section 1103(a) of the Ethics Act. See, Confidential Opinion, 01-005; McCarrier/Anderson, Opinion 98-008; Warso, Order 974. The propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: Based upon the submitted facts that: (1) Jason Sorgini (“Mr. Sorgini”) is employed with the Methacton School District (“School District”) as the Principal of the Eagleville Elementary School (“Elementary School”); (2) the Elementary School is located in Lower Providence Township (“Township”); and (3) Mr. Sorgini is a Township resident, and he is running for the office of Township Supervisor, you are advised as follows. This advice assumes, without deciding, that Mr. Sorgini, in his capacity as the Elementary School Principal, is 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 Mr. Sorgini would be elected as a Township Supervisor, he would in that capacity be a public official subject to the Ethics Act. Subject to the restrictions, conditions and qualifications set forth above, Mr. Sorgini may, consistent with Section 1103(a) of the Ethics Act, simultaneously serve as the Quinn, 11-528 May 24, 2011 Page 5 Elementary School Principal and a Township Supervisor. 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 exist. In each instance of a conflict of interest, Mr. Sorgini would be required to abstain fully 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. However, because the School District is a “political subdivision” and not a “business” as defined by the Ethics Act, Mr. Sorgini would not have a conflict of interest under Section 1103(a) of the Ethics Act in matters before the Township Board of Supervisors that would financially impact the School District but that would not financially impact him, a member of his immediate family, or a business with which he or a member of his immediate family is associated. A pecuniary benefit flowing solely to a governmental entity would not form the basis for a conflict of interest under Section 1103(a) 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. 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