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HomeMy WebLinkAbout12-566 Houser ADVICE OF COUNSEL October 15, 2012 Chris Houser P.O. Box 33 Woodward, PA 16882 12-566 Dear Mr. Houser: This responds to your letter dated August 31, 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 serving 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; (2) after the school district school board voted to enter into a land use agreement with the Group, the individual began serving on the board of the Group; and (3) the individual has since resigned from serving on the board of the Group. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are currently serving your second term as a School Director for the Penns Valley Area School District (“School District”). You state that the School District and/or the School District School Board (“School Board”) might 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 what ultimately became RCI existed, you participated in general community meetings about a proposed community center. You did not participate in the incorporation of RCI. On July 20, 2011, you participated in a School Board vote to enter into a land use agreement with RCI. On July 26, 2011, you attended the first meeting of RCI’s Board as an interested member of the community. At that meeting, you were asked if you would be willing to serve on the RCI Board, and you began doing so on July 26, 2011. You resigned from Houser, 12-566 October 15, 2012 Page 2 the RCI Board on March 19, 2012, because a corporation in which your sister is a principal was involved with negotiations with RCI officials about leasing commercial space for a physical therapy office. You state that the corporation in which your sister is a principal is no longer considering leasing space from RCI. 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 engage in 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. 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 Houser, 12-566 October 15, 2012 Page 3 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. "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. "Immediate family." A parent, spouse, child, brother or sister. "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. "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 65 Pa.C.S. § 1102. Houser, 12-566 October 15, 2012 Page 4 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. Having established the above general principles, your specific questions shall now be addressed. In response to your first question, you are advised that based upon the submitted facts, 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, subject to the conditions that: (1) neither you nor a member of your immediate family would be a director, officer, owner, or employee of RCI or have a financial interest in RCI; and (2) there would be no 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. With regard to your second question, you are advised that the Ethics Act would not prohibit you, in your private capacity, from engaging in 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 are currently serving your second term as a School Director for the School District; (2) the School District and/or the School District School Board (“School Board”) might 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 what ultimately became RCI existed, you participated in general community meetings about a proposed community center; (5) you did not participate in the incorporation of RCI; (6) on July 20, 2011, you participated in a School Board vote to enter into a land use agreement with RCI; (7) on July 26, 2011, you attended the first meeting of RCI’s Board as an interested member of the community; (8) at the July 26, 2011, meeting of RCI’s Board, you were asked if you would be willing to serve on the RCI Board, and you began doing so on July 26, 2011; (9) you resigned from the RCI Board on March 19, 2012, because a corporation in which your sister is a principal was involved with negotiations with RCI officials about leasing commercial space for a physical therapy office; and (10) the corporation in which your sister is a principal is no longer considering leasing space from RCI, you are advised as follows. Section Houser, 12-566 October 15, 2012 Page 5 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, subject to the conditions that: (1) neither you nor a member of your immediate family would be a director, officer, owner, or employee of RCI or have a financial interest in RCI; and (2) there would be no 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. The Ethics Act would not prohibit you, in your private capacity, from engaging in 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. 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