HomeMy WebLinkAbout15-544 Kaufmann
ADVICE OF COUNSEL
July 8, 2015
Rona C. Kaufmann, Ed.D.
Superintendent
South Eastern School District
377 Main Street
Fawn Grove, PA 17321
15-544
Dear Dr. Kaufmann:
This responds to your letter dated May 20, 2015, by which you requested an
advisory from the Pennsylvania State Ethics Commission (“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 the
Superintendent of Record of the York County School of Technology (“YCST”), who also
serves as the Superintendent of the South Eastern School District (“School District”),
with regard to participating in matters in which an individual employed as the
Information Technology Manager for YCST would represent administrative employee(s)
of YCST, if such individual would be elected as a School Director for the School District.
Facts:
You request an advisory from the Commission based upon submitted
facts that may be fairly summarized as follows.
You are the Superintendent of the School District. You are also the
Superintendent of Record of YCST. The School District is one of the school districts
that participate in YCST.
James Roberts (“Mr. Roberts”) is employed as the Information Technology
Manager for YCST, and he serves as president of the Act 93 group of administrative
employees at YCST (the “YCST Act 93 Group”). Mr. Roberts is seeking election as a
School Director for the School District.
Based upon the above submitted facts, you seek guidance as to possible areas
in which you would have a conflict of interest in your capacity as the Superintendent of
Record of YCST if Mr. Roberts would be elected as a School Director for the School
District. In particular, you pose the following questions:
(1) Whether you would have a conflict of interest with regard to serving as the
representative of the YCST Joint Operating Committee in negotiations
with the YCST Act 93 Group led by Mr. Roberts; and
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July 8, 2015
Page 2
(2) Whether you would have a conflict of interest with regard to participating in
administrative matters requiring your intervention in which Mr. Roberts
would serve as the Act 93 representative for the YCST administrative
employee.
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 each of your positions as the Superintendent of the School District and the
Superintendent of Record of YCST, you are a public official/public employee subject to
the provisions of the Ethics Act.
Section 1103(a) of the Ethics Act provides:
§ 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 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.
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
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July 8, 2015
Page 3
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.
In each instance of a conflict of interest, the public official/public employee would
be required to abstain from participation. The abstention requirement would extend 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 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.
In applying the above provisions of the Ethics Act to your advisory request, you
are advised as follows.
In each of your positions as the Superintendent of the School District and the
Superintendent of Record of YCST, you generally would have a conflict of interest in
matters that would financially impact you, a member of your immediate family, or a
business with which you or a member of your immediate family is associated.
Per State Ethics Commission precedent, a public official/public employee
generally would have a conflict of interest in matters pertaining to a person who, in a
different capacity, has authority or control over the public official/public employee. See,
Confidential Opinion, 05-004; Elisco, Opinion 00-003; Woodring, Opinion 90-001
(involving reciprocity of power).
In Confidential Opinion, 05-004, the Commission held that a school director
would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters
pertaining to the appointment/employment of a middle school principal for the school
district when one of the candidates for the position exercised some administrative
authority and influence over the school director as to the latter’s employment as a
teacher in a different school district.
Similarly, in the instant matter, in your position as the Superintendent of Record
of YCST, you exercise some authority over Mr. Roberts as a YCST employee, while if
Mr. Roberts would be elected as a School Director for the School District, he would in
that capacity exercise authority over you in your position as the Superintendent of the
School District.
The Pennsylvania Supreme Court has held that 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.
Kistler v. State Ethics Commission, 610 Pa. 516, 523, 22 A.3d 223, 227 (2011). To
violate Section 1103(a) of the Ethics Act, a public official/public employee “must be
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July 8, 2015
Page 4
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 the above precedents, you are advised that if Mr. Roberts would be
elected as a School Director for the School District, you would have a conflict of interest
in your position as the Superintendent of Record of YCST and would transgress Section
1103(a) of the Ethics Act by: (1) serving as the representative of the YCST Joint
Operating Committee in negotiations with the YCST Act 93 Group led by Mr. Roberts; or
(2) participating in administrative matters requiring your intervention in which Mr.
Roberts would serve as the Act 93 representative for the YCST administrative
employee, to the extent you would be consciously aware of a private pecuniary benefit
for yourself, a member of your immediate family, or a business with which you or a
member of your immediate family is associated, and your action would constitute one or
more specific steps to attain that benefit. Kistler, supra. As noted above, in each
instance of a conflict of interest, you would be required to abstain from participation.
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 are the
Superintendent of the South Eastern School District (“School District”); (2) you are also
the Superintendent of Record of the York County School of Technology (“YCST”); (3)
the School District is one of the school districts that participate in YCST; (4) James
Roberts (“Mr. Roberts”) is employed as the Information Technology Manager for YCST,
and he serves as president of the Act 93 group of administrative employees at YCST
(the “YCST Act 93 Group”); and (5) Mr. Roberts is seeking election as a School Director
for the School District, you are advised as follows.
In each of your positions as the Superintendent of the School District and the
Superintendent of Record of YCST, you are a public official/public employee subject to
the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. §
1101 et seq. In each of the aforesaid positions, you generally would have a conflict of
interest in matters that would financially impact you, a member of your immediate
family, or a business with which you or a member of your immediate family is
associated.
If Mr. Roberts would be elected as a School Director for the School District, you
would have a conflict of interest in your position as the Superintendent of Record of
YCST and would transgress Section 1103(a) of the Ethics Act by: (1) serving as the
representative of the YCST Joint Operating Committee in negotiations with the YCST
Act 93 Group led by Mr. Roberts; or (2) participating in administrative matters requiring
your intervention in which Mr. Roberts would serve as the Act 93 representative for the
YCST administrative employee, to the extent you would be consciously aware of a
private pecuniary benefit for yourself, a member of your immediate family, or a business
with which you or a member of your immediate family is associated, and your action
would constitute one or more specific steps to attain that benefit. In each instance of a
conflict of interest, you would be required to abstain from participation. 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.
Kaufmann, 15-544
July 8, 2015
Page 5
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