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HomeMy WebLinkAbout12-515 Myers ADVICE OF COUNSEL March 9, 2012 Jeffrey N. Myers 46 Cave Street Fairchance, PA 15436 12-515 Dear Mr. Myers: This responds to your correspondence received January 17, 2012, January 23, 2012, and January 24, 2012, 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, whose school district is one of four school districts participating in a career and technical institute, with regard to being hired as a consultant for the career and technical institute. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are employed as a Paraprofessional with Intermediate Unit 1 (“Intermediate Unit”), in which capacity you are currently stationed at the Fayette County Career and Technical Institute (“Institute”). You have submitted a copy of a job description for your position as a Paraprofessional with the Intermediate Unit, which document is incorporated herein by reference. The Institute offers programs to students in four participating school districts (the “School Districts”), including the Albert Gallatin Area School District. It is administratively noted that per the Institute’s website, each of the School Districts appoints three of its school directors to serve on the Operating Committee of the Institute. In November, you were elected as a School Director for the Albert Gallatin Area School District. You are not a Member of the Operating Committee of the Institute. You state that you were recently approached by the Director of the Institute regarding the possibility of you being hired as a consultant for the Institute, in which capacity your duties would include, but not be limited to, training and related programming as well as the writing and implementation of needed safety and security Myers, 12-515 March 9, 2012 Page 2 policies and procedures. You state that if you would be hired as a consultant for the Institute, you would resign from your employment as a Paraprofessional with the Intermediate Unit. You seek an advisory as to whether the Ethics Act would impose any prohibitions or restrictions upon you with regard to being hired as a consultant for the Institute. 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. As a School Director for the Albert Gallatin Area 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 in that capacity. Based upon the submitted job description, in your capacity as a Paraprofessional with the Intermediate Unit, you would not be considered a “public employee” as that term is defined by 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). Myers, 12-515 March 9, 2012 Page 3 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 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. 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, pertaining to conflict of interest, imposes restrictions upon public officials and public employees. Therefore, Section 1103(a) would impose restrictions upon you in your capacity as a public official (School Director), rather than in your private capacity. Per State Ethics Commission precedent, a public official/public employee generally would have a conflict of interest in matters pertaining to a person who, in a different capacity, has authority or control over the public official/public employee. See, Confidential Opinion, 05-004; Elisco, Opinion 00-003; Woodring, Opinion 90-001 (involving reciprocity of power). Myers, 12-515 March 9, 2012 Page 4 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). You are advised that Section 1103(a) of the Ethics Act would not prohibit you from being hired as a consultant for the Institute. However, at such times as you would be a consultant for the Institute or would have a reasonable expectation of becoming a consultant for the Institute, matters pertaining to the appointment of School Directors from the Albert Gallatin Area School District to serve on the Operating Committee of the Institute could present a conflict of interest for you in your public capacity as a School Director, to the extent that the Operating Committee would exercise authority over you as a consultant to the Institute. A violation of Section 1103(a) of the Ethics Act would occur if you would be consciously aware of a private pecuniary benefit for you and you would take action in the form of one or more specific steps to attain that benefit. Kistler, supra. In each instance of a conflict of interest, you 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 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 Albert Gallatin Area 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: (1) you are employed as a Paraprofessional with Intermediate Unit 1 (“Intermediate Unit”), in which capacity you are currently stationed at the Fayette County Career and Technical Institute (“Institute”); (2) the Institute offers programs to students in four participating school districts (the “School Districts”), including the Albert Gallatin Area School District; (3) each of the School Districts appoints three of its school directors to serve on the Operating Committee of the Institute; (4) you are not a Member of the Operating Committee of the Institute; (5) you were recently approached by the Director of the Institute regarding the possibility of you being hired as a consultant for the Institute; and (6) if hired as a consultant for the Institute, you would resign from your employment as a Paraprofessional with the Intermediate Unit, you are advised as follows. Based upon the submitted job description, in your capacity as a Paraprofessional with the Intermediate Unit, you would not be considered a “public employee” as that term is defined by the Ethics Act. Section 1103(a) of the Ethics Act would impose restrictions upon you in your capacity as a public official (School Director), rather than in your private capacity. Section 1103(a) of the Ethics Act would not prohibit you from being hired as a consultant for the Institute. However, at such times as you would be a consultant for the Institute or would have a reasonable expectation of becoming a consultant for the Institute, matters pertaining to the appointment of School Directors from the Albert Gallatin Area School District to serve on the Operating Committee of the Institute could present a conflict of interest for you in your public capacity as a School Director, to the extent that the Operating Committee would exercise authority over you as a consultant to the Institute. A violation of Section 1103(a) of the Ethics Act would occur if you would be consciously aware of a private pecuniary benefit for you and you would take action in Myers, 12-515 March 9, 2012 Page 5 the form of one or more specific steps to attain that benefit. 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