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HomeMy WebLinkAbout12-003 Zurchin OPINION OF THE COMMISSION Before: John J. Bolger, Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk Mark R. Corrigan DATE DECIDED: 9/24/12 DATE MAILED: 10/5/12 12-003 Cynthia R. Zurchin, Ed.D. Assistant Superintendent Moon Area School District 8353 University Boulevard Moon Township, PA 15108-2597 Dear Ms. Zurchin: This Opinion is issued in response to your letters of July 16, 2012, and August 1, 2012, by which you requested an advisory from this Commission. I.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 employed as an assistant superintendent for a school district, who has co-authored a book, with regard to purchasing copies of the book directly from the publisher on behalf of the school district in order to pass along to the school district a discount available to the individual as a co- author of the book. II.FACTUAL BASIS FOR DETERMINATION: You request an advisory opinion from this Commission based upon the following submitted facts. You are the Assistant Superintendent for the Moon Area School District (“School District”). You have submitted a copy of a School District job description for the position of Assistant Superintendent, which document is incorporated herein by reference. You recently co-authored a book entitled “The Whale Done School” (the “Book”). Zurchin, 12-003 October 5, 2012 Page 2 You state that the School District School Board (“School Board”) has been made fully aware that you are a co-author of the Book. The School Board conducted an independent review of the Book and the programs contained therein to determine whether the Book would be of educational benefit to the children and staff of the School District. After the School Board took official action to approve the purchase of a copy of the Book for all employees within the School District, you were informed by the School District’s purchasing agent that the price to purchase the Book through Barnes & Noble would be $12.13 per copy, including shipping and handling. As one of the authors of the Book, you are able to purchase the Book directly from the publisher, Author House, at the price of $5.98 per copy plus shipping and handling. The School District will be ordering a minimum of 500 copies of the Book. It would cost $6,065.00 for the School District to purchase 500 copies of the Book from Barnes & Noble. It would cost $3,145.18, including shipping, for you to purchase 500 copies of the Book from Author House. You state that if you would purchase 500 copies of the Book from Author House for the benefit of the School District, it would save the School District $2,919.82, and you would have no personal gain from the sale of such copies of the Book to the School District. You seek guidance as to whether the Ethics Act would permit you to purchase copies of the Book directly from Author House on behalf of the School District in order to pass along to the School District the discount available to you as a co-author of the Book. By letter dated August 28, 2012, you were notified of the date, time and location of the public meeting at which your request would be considered. III.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, this 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. In this regard, it is noted that there is no indication in the submitted facts that you co-authored the Book in your public capacity, and therefore, it is assumed that you co-authored the Book in a private capacity. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an advisory may be given only as to prospective (future) conduct. If the activity in question has already occurred, this Commission may not issue an advisory but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory. However, to the extent you have inquired as to future conduct, your inquiry may, and shall, be addressed. As the Assistant Superintendent for the School District, you would be considered a “public employee” subject to the Ethics Act and the Regulations of this Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities Zurchin, 12-003 October 5, 2012 Page 3 (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. "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. Zurchin, 12-003 October 5, 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. 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. Zurchin, 12-003 October 5, 2012 Page 5 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 provides that the public official/public employee, in his public capacity, may not have any supervisory or overall responsibility as to the implementation or administration of the contract with the governmental body. In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. Based upon the submitted facts, Section 1103(a) of the Ethics Act would not prohibit you from purchasing copies of the Book directly from Author House on behalf of the School District in order to pass along to the School District the discount available to you as a co- author of the Book. Under the submitted facts, there would be no use of the authority of your public position as the Assistant Superintendent of the School District in performing such activity or private pecuniary benefit to you from engaging in such activity. With regard to Section 1103(f) of the Ethics Act, it is not clear from the submitted facts whether you would pay Author House for the copies of the Book and then receive payment from the School District for the cost of the copies, or whether the copies of the Book would be ordered from Author House in your name, with the School District making payment directly to Author House for the copies. You are advised that an agreement or arrangement whereby you would pay Author House for copies of the Book and then receive payment from the School District for the cost of the copies would constitute a “contract” as that term is defined in the Ethics Act. Under this Commission’s precedent, the value of such contract would be based upon the amount paid by the School District to you for the cost of the copies of the Book and not upon your lack of any financial gain from the transaction. Cf., Sanders, Sr., Order 1119 (holding that a contract between a borough and a business exceeded the $500 threshold of Section 1103(f) of the Ethics Act when the business realized a financial gain of only $97.88 but was paid $1,570.00 for its services). The restrictions and requirements of Section 1103(f) of the Ethics Act would have to be observed as to any contract between you and the School District valued at $500 or more. Although the Pennsylvania Supreme Court has held that Section 1103(f) itself does not require a competitive bidding process (see, Kistler v. State Ethics Commission, 610 Pa. 516, 22 A.3d 223 (2011)), Section 1103(f) would, at a minimum, require that any contract between you and the School District valued at $500 or more be awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. You are further advised that an agreement or arrangement whereby copies of the Book would be ordered from Author House in your name, with the School District making payment directly to Author House for the cost of the copies and no payment flowing to you, would not constitute a contract between you and the School District, and therefore, the restrictions and requirements of Section 1103(f) of the Ethics Act would not apply as to such an agreement or arrangement. The propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Public School Code. We Zurchin, 12-003 October 5, 2012 Page 6 note the following provision of the Public School Code: § 8-808. Employe of district as agent No person shall act as agent for school books or school supplies, in any district in which he is engaged or employed as a superintendent, teacher, or employe of the school district in any capacity, or in which he was thus employed during the preceding school year. 24 P.S. § 8-808. Since this Commission does not have the statutory jurisdiction to administer or interpret the Public School Code, it is recommended that you obtain legal advice as to any potential impact of that Code. IV.CONCLUSION: As the Assistant Superintendent for the Moon Area School District (“School District”), you would be considered a “public employee” subject to the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and the Regulations of the Pennsylvania State Ethics Commission, 51 Pa. Code § 11.1 et seq. Based upon the submitted facts that: (1) you recently co-authored a book entitled “The Whale Done School” (the “Book”); (2) the School District School Board (“School Board”) has been made fully aware that you are a co-author of the Book; (3) the School Board conducted an independent review of the Book and the programs contained therein to determine whether the Book would be of educational benefit to the children and staff of the School District; (4) after the School Board took official action to approve the purchase of a copy of the Book for all employees within the School District, you were informed by the School District’s purchasing agent that the price to purchase the Book through Barnes & Noble would be $12.13 per copy, including shipping and handling; (5) as one of the authors of the Book, you are able to purchase the Book directly from the publisher, Author House, at the price of $5.98 per copy plus shipping and handling; (6) the School District will be ordering a minimum of 500 copies of the Book; (7) it would cost $6,065.00 for the School District to purchase 500 copies of the Book from Barnes & Noble; (8) it would cost $3,145.18, including shipping, for you to purchase 500 copies of the Book from Author House; and (9) if you would purchase 500 copies of the Book from Author House for the benefit of the School District, it would save the School District $2,919.82, and you would have no personal gain from the sale of such copies of the Book to the School District, you are advised as follows. Based upon the submitted facts, Section 1103(a) of the Ethics Act would not prohibit you from purchasing copies of the Book directly from Author House on behalf of the School District in order to pass along to the School District the discount available to you as a co- author of the Book. An agreement or arrangement whereby you would pay Author House for copies of the Book and then receive payment from the School District for the cost of the copies would constitute a “contract” as that term is defined in the Ethics Act. The value of such contract would be based upon the amount paid by the School District to you for the cost of the copies of the Book and not upon your lack of any financial gain from the transaction. The restrictions and requirements of Section 1103(f) of the Ethics Act would have to be observed as to any contract between you and the School District valued at $500 or more. Section 1103(f) of the Ethics Act would, at a minimum, require that any contract between you and the School District valued at $500 or more be awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. An agreement or arrangement whereby copies of the Book would be ordered from Zurchin, 12-003 October 5, 2012 Page 7 Author House in your name, with the School District making payment directly to Author House for the cost of the copies and no payment flowing to you, would not constitute a contract between you and the School District, and therefore, the restrictions and requirements of Section 1103(f) of the Ethics Act would not apply as to such an agreement or arrangement. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(10) of the Ethics Act, the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. By the Commission, John J. Bolger Chair