HomeMy WebLinkAbout12-560 Ott
ADVICE OF COUNSEL
August 22, 2012
Troy L. Ott, Ph.D.
427 Upper Georges Valley Road
Spring Mills, PA 16875
12-560
Dear Dr. Ott:
This responds to your letter dated July 22, 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 an individual
who was recently appointed as a school director with regard to participating in
discussions, deliberations, or votes involving a proposed lease or sale of existing
unused school district property to a community based non-profit group (“Group”), where:
(1) the Group would in turn build and operate a community center (“Center”) that could
be used by the general public, staff, and students; and (2) before becoming a school
director, the individual personally volunteered his time to serve in support of activities
related to the Center, but the individual did not serve in a formal role on the Group’s
board or any of the Group’s committees.
Facts:
As a School Director for the Penns Valley Area School District (“School
District”), you request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts that may be fairly summarized as follows.
You state that you were recently appointed to complete the unexpired term of a
School Director who resigned from the School District School Board (“School Board”).
You state that the School District and/or the School Board will likely consider
whether to lease or sell existing unused School District property to a community based
non-profit group named “Ram Centre Incorporated” (“RCI”). RCI would in turn build and
operate a community center that would be called the “Ram Centre” and could be used
by the general public, staff, and students.
You state that in the recent past, and before you became a School Director, you
personally volunteered your time to serve in support of activities related to the Ram
Centre. You state that you did not serve in a formal role on RCI’s Board or any of RCI’s
committees. You further state that your role as a volunteer for RCI did not and does not
provide you with the ability to speak to issues being considered by the RCI Board or
allow you any voting rights on the RCI Board. You additionally state that no one from
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August 22, 2012
Page 2
your family has a formal or informal role with RCI or the proposed Ram Centre. You
state that neither you nor any member of your family has a pecuniary interest in RCI or
the proposed Ram Centre.
Based upon the above submitted facts, you pose the following questions:
(1) Whether you would be permitted to participate in discussions,
deliberations, or votes involving any proposed lease or sale of existing
unused School District property to RCI; and
(2) Whether you would be permitted to resume performing volunteer activities
on behalf of RCI, which would not include being on the RCI Board and/or
securing any pecuniary benefit.
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 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.
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
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August 22, 2012
Page 3
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
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.
Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have
to be satisfied in the event of a voting conflict.
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August 22, 2012
Page 4
Having established the above general principles, your specific questions shall
now be addressed.
In response to your first question, you are advised that there is no basis in the
submitted facts to conclude that RCI is a business with which you are associated as the
Ethics Act defines that term. Therefore, under the submitted facts, you are advised that
absent a basis for a conflict of interest such as a private pecuniary benefit to you, a
member of your immediate family, or a business with which you or a member of your
immediate family is associated, Section 1103(a) of the Ethics Act would not prohibit you
from participating in your capacity as a School Director in discussions, deliberations, or
votes involving a proposed lease or sale of existing unused School District property to
RCI.
With regard to your second question, you are advised that the Ethics Act would
not prohibit you, in your private capacity, from resuming the performance of volunteer
activities on behalf of RCI.
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.
Conclusion:
As a School Director for the Penns Valley Area School District
(“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
submitted facts that: (1) you were recently appointed to complete the unexpired term of
a School Director who resigned from the School District School Board (“School Board”);
(2) the School District and/or the School Board will likely consider whether to lease or
sell existing unused School District property to a community based non-profit group
named “Ram Centre Incorporated” (“RCI”); (3) RCI would in turn build and operate a
community center that would be called the “Ram Centre” and could be used by the
general public, staff, and students; (4) in the recent past, and before you became a
School Director, you personally volunteered your time to serve in support of activities
related to the Ram Centre; (5) you did not serve in a formal role on RCI’s Board or any
of RCI’s committees; (6) your role as a volunteer for RCI did not and does not provide
you with the ability to speak to issues being considered by the RCI Board or allow you
any voting rights on the RCI Board; (7) no one from your family has a formal or informal
role with RCI or the proposed Ram Centre; and (8) neither you nor any member of your
family has a pecuniary interest in RCI or the proposed Ram Centre, you are advised as
follows. There is no basis in the submitted facts to conclude that RCI is a business with
which you are associated as the Ethics Act defines that term. Therefore, under the
submitted facts, you are advised that absent a basis for a conflict of interest such as a
private pecuniary benefit to you, a member of your immediate family, or a business with
which you or a member of your immediate family is associated, Section 1103(a) of the
Ethics Act would not prohibit you from participating in your capacity as a School Director
in discussions, deliberations, or votes involving a proposed lease or sale of existing
unused School District property to RCI. The Ethics Act would not prohibit you, in your
private capacity, from resuming the performance of volunteer activities on behalf of RCI.
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.
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August 22, 2012
Page 5
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