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HomeMy WebLinkAbout13-568 ADVICE OF COUNSEL October 21, 2013 13-568 This responds to your letter of August 26, 2013, by which you requested a confidential 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 applying for or being appointed to the position of A for the school district, where the individual would resign from the school district school board if chosen for employment in such position. Facts: You request a confidential advisory from the Pennsylvania State Ethics Commission on behalf of Individual B. You have submitted facts that may be fairly summarized as follows. Individual B is a School Director for the [name of school district] (the “School District”), located in [name of county], Pennsylvania. Individual B is C of the School District School Board (“School Board”). Individual B’s current elected term as a School District School Director expires in or about [month, year], and he wishes to apply for the position of School District A. You state that Individual B believes that he meets the D for the aforesaid position. Individual B proposes to resign from the School Board if he would be chosen for employment as the School District A. Based upon the above submitted facts, you pose the following questions: (1) Whether the Ethics Act would impose any prohibitions or restrictions upon Individual B with regard to applying for or accepting a position as the School District A, where Individual B would resign from the School Board if chosen for employment in such position; and (2) Whether Individual B would be eligible to commence employment as the School District A prior to the expiration of his current elected term as a School Director. 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 Confidential Advice, 13-568 October 21, 2013 Page 2 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. Per the submitted facts, this Advice assumes that if Individual B would be chosen for employment as the School District A, he would not accept such position until after resigning from the School Board. As a School Director for the School District, Individual B is a public official 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 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 Confidential Advice, 13-568 October 21, 2013 Page 3 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. It is administratively noted that the Public School Code provides, in pertinent part, as follows: § 3-324. Not to be employed by or do business with district; exceptions (a) No school director shall, during the term for which he was elected or appointed, as a private person engaged in any business transaction with the school district in which he is elected or appointed, be employed in any capacity by the school district in which he is elected or appointed, or receive from such school district any pay for services rendered to the district except as provided in this act: Provided, That one who has served as a school director for two consecutive terms, of six years each, may be elected to the position of attorney or solicitor for the board of which he was a member by the unanimous vote of all the other members of the board, and, after resigning his office as school director, shall be entitled to receive such pay for his services as solicitor as the board of school directors may determine: Provided, however, That a school director may be appointed to the position of secretary to the board of a school district of the second class, of which he was a member during the term for which he was elected or appointed upon the unanimous consent of all the other members of the board after resigning his office as school director, and he shall be entitled to receive such pay for his services as secretary as the board Confidential Advice, 13-568 October 21, 2013 Page 4 of school directors shall determine: And provided further, That one who has served as a school director may, after resigning from office as a school director, be elected to the position of teacher by the board of which he was a member by a vote of at least two-thirds of all other members of the board and shall be entitled to receive such pay for his services as a teacher as the board of school directors may lawfully determine. 24 P.S. § 3-324(a). 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 would prohibit Individual B from using the authority of his current public position as a School District School Director or confidential information received by being a School District School Director to advance an opportunity of employment with the School District. In his capacity as a School District School Director, Individual B generally would have a conflict of interest in matters pertaining to the appointment of a School District A given his interest in applying for said position. Such matters would include but would not be limited to determining the necessary qualifications for the position of School District A, reviewing applications, or screening or interviewing applicants. In each instance of a conflict of interest, Individual B would be required to abstain fully 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. Subject to the condition that there would be no use of authority of Individual B’s position as a School District School Director or confidential information received by being in such position to advance the prospects of his obtaining employment as the School District A, Section 1103(a) of the Ethics Act would not prohibit Individual B from applying for or being appointed to the position of School District A where Individual B would resign from the School Board if chosen for employment in such position. Section 1103(g) of the Ethics Act restricts a former public official/public employee with regard to “representing” a “person” before “the governmental body with which he has been associated”: § 1103. Restricted activities (g) Former official or employee.-- No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g) (Emphasis added). You are advised that Section 1103(g) of the Ethics Act would not prohibit Individual B from accepting the employment position of School District A during the first year following his resignation from the School Board. The Commission has determined that Section 1103(g) of the Ethics Act does not prohibit the appointment/rehiring of a former public official/public employee to a public office or position of public employment with the former governmental body. Confidential Opinion, 93-005; Confidential Opinion, 97-008; Long, Opinions 97-010 and 97-010-R; McGlathery, Opinion 00-004. Confidential Advice, 13-568 October 21, 2013 Page 5 As for your remaining question, the answer to the question of whether Individual B would be eligible to commence employment as the School District A prior to the expiration of his current elected term as a School Director hinges upon an interpretation of the Public School Code. Since the Pennsylvania State Ethics Commission does not have the statutory jurisdiction to interpret the Public School Code, it is recommended that Individual B obtain legal advice as to any potential impact of the Public School Code. The propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: As a School Director for the [name of school district] (the “School District”), located in [name of county], Pennsylvania, Individual B 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: (1) Individual B is C of the School District School Board (“School Board”); (2) Individual B’s current elected term as a School District School Director expires in or about [month, year], and he wishes to apply for the position of School District A; (3) Individual B believes that he meets the D for the aforesaid position; and (4) Individual B proposes to resign from the School Board if he would be chosen for employment as the School District A, you are advised as follows. Section 1103(a) of the Ethics Act would prohibit Individual B from using the authority of his current public position as a School District School Director or confidential information received by being a School District School Director to advance an opportunity of employment with the School District. In his capacity as a School District School Director, Individual B generally would have a conflict of interest in matters pertaining to the appointment of a School District A given his interest in applying for said position. Such matters would include but would not be limited to determining the necessary qualifications for the position of School District A, reviewing applications, or screening or interviewing applicants. In each instance of a conflict of interest, Individual B would be required to abstain fully 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. Subject to the condition that there would be no use of authority of Individual B’s position as a School District School Director or confidential information received by being in such position to advance the prospects of his obtaining employment as the School District A, Section 1103(a) of the Ethics Act would not prohibit Individual B from applying for or being appointed to the position of School District A where Individual B would resign from the School Board if chosen for employment in such position. Section 1103(g) of the Ethics Act would not prohibit Individual B from accepting the employment position of School District A during the first year following his resignation from the School Board. The answer to the question of whether Individual B would be eligible to commence employment as the School District A prior to the expiration of his current elected term as a School Director hinges upon an interpretation of the Public School Code. Since the Pennsylvania State Ethics Commission does not have the statutory jurisdiction to interpret the Public School Code, it is recommended that Individual B obtain legal advice as to any potential impact of the Public School Code. 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. Confidential Advice, 13-568 October 21, 2013 Page 6 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