HomeMy WebLinkAbout11-571
ADVICE OF COUNSEL
December 23, 2011
Gary E. Norton, Esquire
Derr, Pursel, Luschas & Norton, LLP
120 West Main Street
P.O. Box 539
Bloomsburg, PA 17815
11-571
Dear Mr. Norton:
This responds to your letters dated November 11, 2011, and November 22,
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 a school
director with regard to voting on matters pertaining to a high school principal whom the
school director represents in a divorce case in her private capacity as an attorney.
Facts:
You have been authorized by an individual (“the Individual”) to request an
advisory from the Pennsylvania State Ethics Commission on her behalf. You have
submitted facts that may be fairly summarized as follows.
The Individual was recently elected as a School Director for a school district
(“School District”). In her private capacity as an attorney, the Individual represents a
School District high school principal (“High School Principal”) in a divorce case.
Based upon the above submitted facts, you ask whether the Ethics Act would
permit the Individual to vote on matters regarding the High School Principal, such as Act
93 policies, promotion, discipline, and the like.
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.
Norton, 11-571
December 23, 2011
Page 2
As a School Director for the School District, the Individual is a public official as
that term is defined in the Ethics Act, and therefore she is 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
employee, a member of his immediate family or a business
with which he or a member of his immediate family is
associated.
Norton, 11-571
December 23, 2011
Page 3
"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.
Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
In applying the above provisions of the Ethics Act to your inquiry, you are advised
as follows.
Subject to the statutory exclusions to the definition of “conflict” or “conflict of
interest” as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a)
of the Ethics Act, the Individual would have a conflict of interest in matters before the
School District School Board that would financially impact her, a member of her
immediate family, or a business with which she or a member of her immediate family is
associated.
Per State Ethics Commission precedent, a public official who is an attorney
generally would have a conflict of interest in his official capacity in matters involving a
current client. See, Kannebecker, Opinion 92-010.
The Pennsylvania Supreme Court has held that in order to violate Section
1103(a) of the Ethics Act, a public official/public employee “must be consciously aware
of a private pecuniary benefit for himself, his family, or his business, and then must take
action in the form of one or more specific steps to attain that benefit.” Kistler v. State
Ethics Commission, Pa. , , 22 A.3d 223, 231 (2011).
Based upon the above precedents, you are advised that the Individual would
have a conflict of interest and would transgress Section 1103(a) of the Ethics Act by
participating in matter(s) before the School District School Board regarding the High
Norton, 11-571
December 23, 2011
Page 4
School Principal to the extent the Individual would be consciously aware of a private
pecuniary benefit for herself, a member of her immediate family, or a business with
which she or a member of her immediate family is associated, and her official action
would constitute one or more specific steps to attain that benefit. Kistler, supra. The
Individual would specifically have a conflict of interest in matters such as policies,
promotion, discipline, and the like that could financially impact the High School Principal
and his ability to pay for the legal services of the Individual or a law practice with which
she is associated, or that could impact the extent to which the High School Principal
would do business with the Individual or a law practice with which she is associated.
As noted above, in each instance of a conflict of interest, the Individual 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 observed in the event of a voting conflict.
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. Specifically not addressed herein is the applicability of
the Public School Code or the Rules of Professional Conduct.
Conclusion:
In her capacity as a School Director for a school district (“School
District”), the individual (“Individual”) on whose behalf you have inquired 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 in her private
capacity as an attorney, the Individual represents a School District high school principal
(“High School Principal”) in a divorce case, you are advised as follows. Subject to the
statutory exclusions to the definition of “conflict” or “conflict of interest” as set forth in the
Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, the
Individual would have a conflict of interest in matters before the School District School
Board that would financially impact her, a member of her immediate family, or a
business with which she or a member of her immediate family is associated. The
Individual would have a conflict of interest and would transgress Section 1103(a) of the
Ethics Act by participating in matter(s) before the School District School Board
regarding the High School Principal to the extent the Individual would be consciously
aware of a private pecuniary benefit for herself, a member of her immediate family, or a
business with which she or a member of her immediate family is associated, and her
official action would constitute one or more specific steps to attain that benefit. The
Individual would specifically have a conflict of interest in matters such as policies,
promotion, discipline, and the like that could financially impact the High School Principal
and his ability to pay for the legal services of the Individual or a law practice with which
she is associated, or that could impact the extent to which the High School Principal
would do business with the Individual or a law practice with which she is associated. In
each instance of a conflict of interest, the Individual 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 observed in the
event of a voting conflict. 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
.
Norton, 11-571
December 23, 2011
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