HomeMy WebLinkAbout11-559 Shipley
ADVICE OF COUNSEL
October 27, 2011
Wesley W. Shipley, Ed.D.
Superintendent, Shaler Area School District
1800 Mt. Royal Boulevard
Glenshaw, PA 15116-2196
11-559
Dear Dr. Shipley:
This responds to your letter dated September 26, 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
with regard to seeking election or serving as a school director for a school district
where: (1) the individual is a trainer for the school district’s athletic teams in his capacity
as an employee of an outside organization that has a contract with the school district;
(2) in the aforesaid capacity, the individual works closely with all of the school district’s
coaches, and he responds to the coaches’ needs as well as to the direction of the
school district’s athletic director; and (3) the aforesaid contract would be reconsidered
for renewal while the individual would be serving as a school director for the school
district.
Facts:
You have been authorized by William Couts (“Mr. Couts”) to request an
advisory from the Pennsylvania State Ethics Commission on his behalf. You have
submitted facts that may be fairly summarized as follows.
Mr. Couts is running unopposed as a candidate for the office of School Director
for the Shaler Area School District (“School District”). If Mr. Couts would be elected as
a School District School Director, he would serve a three-year term beginning in
December 2011.
Mr. Couts is not a School District employee. However, Mr. Couts is a trainer for
the School District’s athletic teams in his capacity as an employee of an outside
organization, hereinafter referred to as “UPMC,” which has a contract (“Contract”) with
the School District. You state that Mr. Couts works closely with all of the School
District’s coaches and that he responds to the coaches’ needs as well as to the direction
of the School District’s Athletic Director. You further state that the Contract will run
through part of Mr. Couts’ term as a School Director.
Based upon the above submitted facts, you pose the following questions:
Shipley, 11-559
October 27, 2011
Page 2
(1) Whether the Ethics Act would require Mr. Couts to withdraw from the
election or to not accept his seat on the School District School Board if he
would be elected as a School District School Director;
(2) Whether Mr. Couts would have a conflict of interest with regard to working
for UPMC while serving as a School District School Director;
(3) Whether Mr. Couts would have a conflict of interest with regard to working
with the School District’s athletic teams and under the guidance of the
School District’s Athletic Director while serving as a School District School
Director; and
(4) What possible conflicts could exist when the Contract would be
reconsidered for renewal while Mr. Couts would be serving as a School
District School Director.
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.
If Mr. Couts would be elected as a School Director for the School District, 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
Shipley, 11-559
October 27, 2011
Page 3
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
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.
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.
Shipley, 11-559
October 27, 2011
Page 4
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, pertaining to contracting, 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).
The term “contract” is defined in the Ethics Act as follows:
§ 1102. Definitions
"Contract."
An agreement or arrangement for the
acquisition, use or disposal by the Commonwealth or a
political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or
arrangement between the State or political subdivision as
one party and a public official or public employee as the
other party, concerning his expense, reimbursement, salary,
wage, retirement or other benefit, tenure or other matters in
consideration of his current public employment with the
Commonwealth or a political subdivision.
65 Pa.C.S. § 1102.
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
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.
Shipley, 11-559
October 27, 2011
Page 5
It is administratively noted that the Public School Code of 1949 as amended
(“Public School Code”) provides in pertinent part:
§ 3-324. Not to be employed by or do business with
district; exceptions
(a) No school director shall, during the term for which he
was elected or appointed, as a private person engaged in
any business transaction with the school district in which he
is elected or appointed, be employed in any capacity by the
school district in which he is elected or appointed, or receive
from such school district any pay for services rendered to the
district except as provided in this act…
….
(c) It shall not be a violation of this section for a school
district to contract for the purchase of goods or services from
a business with which a school director is associated to the
extent permitted by and in compliance with 65 Pa.C.S. Ch.
11 (relating to ethics standards and financial disclosure).
24 P.S. §§ 3-324(a), (c). On its face, Section 3-324(c) of the Public School Code
permits contracting between school districts and businesses with which school directors
are associated as long as the requirements of the Ethics Act are observed.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised that UPMC is a business with which Mr. Couts is associated in his capacity as
an employee. The Ethics Act would not prohibit Mr. Couts from seeking election or
serving as a School District School Director while UPMC has a contract with the School
District. If Mr. Couts would be elected as a School Director for the School District, upon
assuming said position, he would in that capacity be a public official subject to the
Ethics Act. Pursuant to Section 1103(a) of the Ethics Act, Mr. Couts generally would
have a conflict of interest as a School Director in matters before the School District
School Board that would financially impact him or UPMC, such as matter(s) pertaining
to the Contract. In his public capacity as a School Director, Mr. Couts would have a
conflict of interest pursuant to Section 1103(a) of the Ethics Act with regard to
overseeing work performed by UPMC relative to the Contract or participating in
matter(s) pertaining to renewal(s) of the Contract.
You are advised that Section 1103(a) of the Ethics Act would not prohibit Mr.
Couts, in his private capacity as an employee of UPMC, from working with the School
District’s athletic teams and under the guidance of the School District’s Athletic Director
while serving as a School District School Director. However, in his public capacity as a
School District School Director, Mr. Couts would have a conflict of interest under
Section 1103(a) of the Ethics Act in matter(s) pertaining to School District staff
member(s) who would have oversight or authority as to his work for the School District
as a UPMC employee. Cf., Woodring, Opinion 90-001, Elisco, Opinion 00-003, and
Confidential Opinion, 05-004 (involving reciprocity of power).
In each instance of a conflict of interest, Mr. Couts 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.
You are further advised that the restrictions and requirements of Section 1103(f)
of the Ethics Act would have to be observed whenever applicable. Section 1103(f)
would not be applicable to the current Contract given that the Contract was not entered
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October 27, 2011
Page 6
into at a time when Mr. Couts was serving as a School District School Director. Cf.,
e.g., Bowers, Advice 07-588; Nicholson, Advice 04-544; Confidential Advice, 03-546.
However, any renewals of the Contract would be subject to the restrictions and
requirements of Section 1103(f) of the Ethics Act to the extent that: (1) Mr. Couts would
be a School District School Director; and (2) UPMC would remain a business with which
Mr. Couts is associated.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act.
Conclusion:
Based upon the submitted facts that: (1) William Couts (“Mr.
Couts”) is running unopposed as a candidate for the office of School Director for the
Shaler Area School District (“School District”); (2) if Mr. Couts would be elected as a
School District School Director, he would serve a three-year term beginning in
December 2011; (3) Mr. Couts is not a School District employee; (4) Mr. Couts is a
trainer for the School District’s athletic teams in his capacity as an employee of an
outside organization, hereinafter referred to as “UPMC,” which has a contract
(“Contract”) with the School District; (5) Mr. Couts works closely with all of the School
District’s coaches, and he responds to the coaches’ needs as well as to the direction of
the School District’s Athletic Director; and (6) the Contract will run through part of Mr.
Couts’ term as a School Director, you are advised as follows.
UPMC is a business with which Mr. Couts is associated in his capacity as an
employee. The Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. §
1101 et seq., would not prohibit Mr. Couts from seeking election or serving as a School
District School Director while UPMC has a contract with the School District. If Mr. Couts
would be elected as a School Director for the School District, upon assuming said
position, he would in that capacity be a public official subject to the Ethics Act. Pursuant
to Section 1103(a) of the Ethics Act, Mr. Couts generally would have a conflict of
interest as a School Director in matters before the School District School Board that
would financially impact him or UPMC, such as matter(s) pertaining to the Contract. In
his public capacity as a School Director, Mr. Couts would have a conflict of interest
pursuant to Section 1103(a) of the Ethics Act with regard to overseeing work performed
by UPMC relative to the Contract or participating in matter(s) pertaining to renewal(s) of
the Contract. Section 1103(a) of the Ethics Act would not prohibit Mr. Couts, in his
private capacity as an employee of UPMC, from working with the School District’s
athletic teams and under the guidance of the School District’s Athletic Director while
serving as a School District School Director. However, in his public capacity as a
School District School Director, Mr. Couts would have a conflict of interest under
Section 1103(a) of the Ethics Act in matter(s) pertaining to School District staff
member(s) who would have oversight or authority as to his work for the School District
as a UPMC employee. In each instance of a conflict of interest, Mr. Couts 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.
The restrictions and requirements of Section 1103(f) of the Ethics Act would have
to be observed whenever applicable. Section 1103(f) would not be applicable to the
current Contract given that the Contract was not entered into at a time when Mr. Couts
was serving as a School District School Director. However, any renewals of the
Contract would be subject to the restrictions and requirements of Section 1103(f) of the
Ethics Act to the extent that: (1) Mr. Couts would be a School District School Director;
and (2) UPMC would remain a business with which Mr. Couts is associated. 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
Shipley, 11-559
October 27, 2011
Page 7
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