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HomeMy WebLinkAbout13-571 Carney ADVICE OF COUNSEL October 29, 2013 Steven P. Carney, Special Assistant for Charter Schools Elizabeth Anzalone, Executive Assistant for Charter Schools Pennsylvania Department of Education th 333 Market Street, 10 Floor Harrisburg, PA 17126-0333 13-571 Dear Mr. Carney and Ms. Anzalone: This responds to your letters of September 4, 2013, and September 9, 2013, 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 prohibitions or restrictions upon a Special Assistant to the Secretary of Education or an Executive Assistant for the Pennsylvania Department of Education (“Department of Education”) with regard to accepting an invitation to attend with waived registration fees a conference to be held by the Pennsylvania Coalition of Public Charter Schools. Facts: You request an advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. Mr. Carney is employed as a Special Assistant to the Secretary of Education under job code 24600. Ms. Anzalone is employed as an Executive Assistant for the Department of Education under job code 08260. Each of you has submitted a copy of your official Department of Education position description, which documents are incorporated herein by reference. Copies of the job classification specifications for your respective positions with the Department of Education have been obtained and are also incorporated herein by reference. In his position as a Special Assistant to the Secretary of Education, Mr. Carney assists the Secretary of Education in the oversight and management of charter and cyber charter schools throughout the Commonwealth. In her position as an Executive Assistant for the Department of Education, Ms. Anzalone assists the Executive Deputy Secretary of Education in the management and administration of cyber charter schools in the Commonwealth. The Pennsylvania Coalition of Public Charter Schools (the “Coalition”) is a non- profit organization that promotes “Choice, Quality and Accountability in Public Education” and advocates in the General Assembly on behalf of 173 charter schools in Carney/Anzalone, 13-571 October 29, 2013 Page 2 the Commonwealth. In carrying out the duties of your office, you work closely with the Coalition. The Coalition is holding its annual Leaders’ Summit (the “Conference”) in Harrisburg, Pennsylvania, and approximately 300 charter school leaders and administrators are expected to attend the three-day event. The registration fee for the Conference is $425 per person. The Executive Director of the Coalition has invited you to attend the Conference, and an offer has been made to waive your registration fees. Based upon the above submitted facts, you ask whether the Ethics Act would permit you to accept the invitation to attend the Conference with waived registration fees. 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. In your respective positions as a Special Assistant to the Secretary of Education and an Executive Assistant for the Department of Education, each of you would be considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the position description and the job classification specifications for each of your respective positions, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official action of a non-ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a)Conflict of interest.-- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms pertaining to conflicts of interest 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 Carney/Anzalone, 13-571 October 29, 2013 Page 3 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. Section 1103(a) of the Ethics Act prohibits a public official/public employee 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 includes more than mere voting; for example, it includes discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. It is noted that the above statutory definition of the term “conflict” or “conflict of interest” contains, in pertinent part, an exclusion referred to herein as the “de minimis exclusion.” The de minimis exclusion precludes a finding of conflict of interest as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact, a conflict would not exist and Section 1103(a) of the Ethics Act would not be implicated. See, Kolb, Order 1322; Schweinsburg, Order 900. The Commission has determined the applicability of the de minimis exclusion on a case-by-case basis, considering all relevant circumstances. In the past, the Commission has found amounts ranging from $2 to approximately $500 to be de minimis. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004). Per State Ethics Commission precedent, the Ethics Act does not prohibit a public official/public employee from accepting “no-strings-attached” gifts, transportation, lodging or hospitality (also generically referred to herein as “items”) from a donor. Cf., Cooper, Opinion 92-009. However, such item(s) received by a public official/public employee may form the basis for a conflict of interest pursuant to Section 1103(a) of the Ethics Act if the public official/public employee takes action in furtherance of the interests of the donor. While the receipt of an item of de minimis value would not, in and of itself, create a conflict of interest as to action involving the donor (see, e.g., Stieh, Advice 93-503), the decision as to whether a conflict of interest is presented by the receipt of item(s) is determined on a case-by-case basis. Generally, when a public official or public employee has received item(s) that would form the basis for a conflict of interest under the Ethics Act, the public official/public employee must abstain from acting in matters pertaining to the donor. Regardless of whether a conflict of interest exists, depending upon the value of the item(s) received, the public official or public employee may be required to disclose his receipt of such item(s) on his Statement of Financial Interests pursuant to Sections 1104 and 1105 of the Ethics Act, 65 Pa.C.S. §§ 1104, 1105. Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(6) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests the name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift. Carney/Anzalone, 13-571 October 29, 2013 Page 4 In addition, Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value and no public official/public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official/public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Having set forth the above principles, you are advised as follows. Section 1103(a) of the Ethics Act would not prohibit you from accepting the invitation to attend the Conference with waived registration fees. Based upon the submitted fact that the Conference registration fee is $425, you are advised that your acceptance of the waiver of such fee would not, in and of itself, form the basis for a conflict of interest under the Ethics Act. See, Bixler, supra. Finally, based upon the submitted facts, you are advised that you would be required to disclose as a gift on your Statement of Financial Interests the waiver of the Conference registration fee. 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 Governor’s Code of Conduct. Conclusion: In your respective positions as a Special Assistant to the Secretary of Education and an Executive Assistant for the Pennsylvania Department of Education (“Department of Education”), each of you would be considered a “public employee” subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Based upon the submitted facts that: (1) in his position as a Special Assistant to the Secretary of Education, Mr. Carney assists the Secretary of Education in the oversight and management of charter and cyber charter schools throughout the Commonwealth; (2) in her position as an Executive Assistant for the Department of Education, Ms. Anzalone assists the Executive Deputy Secretary of Education in the management and administration of cyber charter schools in the Commonwealth; (3) the Pennsylvania Coalition of Public Charter Schools (the “Coalition”) is a non-profit organization that promotes “Choice, Quality and Accountability in Public Education” and advocates in the General Assembly on behalf of 173 charter schools in the Commonwealth; (4) in carrying out the duties of your office, you work closely with the Coalition; (5) the Coalition is holding its annual Leaders’ Summit (the “Conference”) in Harrisburg, Pennsylvania, and approximately 300 charter school leaders and administrators are expected to attend the three-day event; (6) the registration fee for the Conference is $425 per person; and (7) the Executive Director of the Coalition has invited you to attend the Conference, and an offer has been made to waive your registration fees, you are advised as follows. Section 1103(a) of the Ethics Act would not prohibit you from accepting the invitation to attend the Conference with waived registration fees. Based upon the submitted fact that the Conference registration fee is $425, you are advised that your acceptance of the waiver of such fee would not, in and of itself, form the basis for a conflict of interest under the Ethics Act. You would be required to disclose as a gift on your Statement of Financial Interests the waiver of the Conference registration fee. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Carney/Anzalone, 13-571 October 29, 2013 Page 5 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