HomeMy WebLinkAbout14-539 Casey
ADVICE OF COUNSEL
August 5, 2014
Robert C. Casey
School Director
Scranton School District
1500 Froude Avenue
Scranton, PA 18505
14-539
Dear Mr. Casey:
This responds to your letter dated July 13, 2014, 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 school director,
whose father works as an independent contractor for two companies, with regard to
participating in matters pertaining to a business relationship between the school
director’s father and the school district school board.
Facts:
You request an advisory from the Pennsylvania State Ethics Commission
based upon submitted facts that may be fairly summarized as follows.
You have served as a School Director for the Scranton School District (“School
District”) since December 2, 2013. For the past three and one-half years, your father
has worked as an independent contractor for two companies (hereinafter referred to as
“Company 1” and “Company 2”), and he has engaged in business with multiple entities,
including the School District School Board (“School Board”). You state that when you
were sworn into office as a School Director, you disclosed the nature of your father’s
business relationship to the other School Directors and the Secretary of the School
Board. You further state that you have abstained from motions and votes concerning
payments to Company 1 and Company 2.
Based upon the above submitted facts, you pose the following questions:
(1) Whether you should continue to abstain from all matters concerning your
father’s business relationship with the School Board;
(2) Whether you would be required to abstain from voting where your father
would not receive compensation in a particular business deal; and
Casey, 14-539
August 5, 2014
Page 2
(3) What ethical obligations would you have where your father would receive
compensation in a particular business deal.
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 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 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
Casey, 14-539
August 5, 2014
Page 3
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.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act’s definition of the term
“conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, 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.
Per the Pennsylvania Supreme Court’s decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the
Ethics Act, a public official/public employee:
… must act in such a way as to put his \[office/public position\]
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part
of the \[public official/public employee\] of the potential
pecuniary benefit as well as the motivation to obtain that
benefit for himself.
Casey, 14-539
August 5, 2014
Page 4
Kistler, supra, 610 Pa. at 523, 22 A.3d at 227. To violate Section 1103(a) of the Ethics
Act, a public official/public employee “must be consciously aware of a private pecuniary
benefit for himself, his family, or his business, and then must take action in the form of
one or more specific steps to attain that benefit.” Id., 610 Pa. at 528, 22 A.3d at 231.
Based upon Kistler, the existence of a violation of Section 1103(a) would depend
upon the circumstances in a given case. Raphael, Opinion 13-003.
In applying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
Your father is a member of your “immediate family” as that term is defined in the
Ethics Act. Based upon the submitted facts, neither Company 1 nor Company 2 would
be considered a business with which your father is associated because your father is
not a director, officer, owner, employee, or holder of a financial interest in either
company.
In response to your first and third questions, you are advised as follows.
You would have a conflict of interest and would violate Section 1103(a) of the
Ethics Act by participating in your official capacity as a School Director in matter(s)
involving your father’s business relationship with the School Board--including but not
limited to particular business deal(s) from which your father would receive
compensation--if: (1) you would be consciously aware of a private pecuniary benefit for
your father/a business with which your father is associated; (2) your action(s) would
constitute one or more specific steps to attain that benefit; and (3) neither of the
statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the
Ethics Act, 65 Pa.C.S. § 1102, would be applicable.
As noted above, in each instance of a conflict of interest, you 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.
With regard to your second question, you are advised that unless there would be
some 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, you would not have a conflict of interest under Section
1103(a) of the Ethics Act in voting on particular business deal(s) from which your father
would receive no compensation.
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:
Based upon the submitted facts that: (1) you have served as a
School Director for the Scranton School District (“School District”) since December 2,
2013; (2) for the past three and one-half years, your father has worked as an
independent contractor for two companies (hereinafter referred to as “Company 1” and
“Company 2”), and he has engaged in business with multiple entities, including the
School District School Board (“School Board”); (3) when you were sworn into office as a
School Director, you disclosed the nature of your father’s business relationship to the
other School Directors and the Secretary of the School Board; and (4) you have
abstained from motions and votes concerning payments to Company 1 and Company 2,
you are advised as follows.
Casey, 14-539
August 5, 2014
Page 5
As a School Director for the 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. Your father is a member of your “immediate family” as that term is defined
in the Ethics Act. Based upon the submitted facts, neither Company 1 nor Company 2
would be considered a business with which your father is associated because your
father is not a director, officer, owner, employee, or holder of a financial interest in either
company. You would have a conflict of interest and would violate Section 1103(a) of
the Ethics Act by participating in your official capacity as a School Director in matter(s)
involving your father’s business relationship with the School Board--including but not
limited to particular business deal(s) from which your father would receive
compensation--if: (1) you would be consciously aware of a private pecuniary benefit for
your father/a business with which your father is associated; (2) your action(s) would
constitute one or more specific steps to attain that benefit; and (3) neither of the
statutory exclusions to the definition of "conflict" or "conflict of interest" as set forth in the
Ethics Act, 65 Pa.C.S. § 1102, would be applicable. In each instance of a conflict of
interest, you 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. Unless there would be some
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, you would not have a conflict of interest under Section 1103(a) of
the Ethics Act in voting on particular business deal(s) from which your father would
receive no compensation. 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