HomeMy WebLinkAbout16-547 Lind
ADVICE OF COUNSEL
July 25, 2016
Chris Lind
10998 Longwood Drive
Waynesboro, PA 17268-8826
16-547
Dear Mr. Lind:
This responds to your letter dated May 23, 2016, 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 a school director
with regard to: (1) working as a substitute teacher in the school district through a third-
party teaching service that provides substitute teaching services to the school district; or
(2) driving a school bus in the school district as a part-time employee of one of three
busing companies that provide busing services to the school district.
Facts:
You request an advisory from the Commission based upon submitted
facts that may be fairly summarized as follows.
You are a School Director for the Waynesboro Area School District (“School
District”), located in Franklin County, Pennsylvania. Your current term of office as a
School Director ends in 2017, and you do not plan to seek reelection.
The School District utilizes a third-party teaching service named “Source 4
Teachers” (“the Service”) for the provision of substitute teaching services instead of
hiring substitute teachers for the School District. In 2015, the School District executed a
contract with the Service that automatically renews on an annual basis.
The School District has a three-year contract with three busing companies
(hereinafter collectively referred to as “the Busing Companies”) for the provision of
busing services. You state that any extension of the contract between the School
District and the Busing Companies or increase in busing fees will not occur until after
your term of office as a School Director has expired.
You are contemplating retiring from your employment in the private sector in
August 2016. You plan to either work as a substitute teacher in local school districts
through the Service or drive a school bus for one of the Busing Companies after your
retirement.
Lind, 16-547
July 25, 2016
Page 2
Based upon the above submitted facts, you pose the following questions:
(1) Whether the Ethics Act would permit you to work as a substitute teacher in
the School District through the Service;
(2) Whether the Ethics Act would permit you to drive a school bus in the
School District as a part-time employee of one of the Busing Companies;
and
(3) Whether you would be required to resign from the School District School
Board prior to working as a substitute teacher in the School District
through the Service or driving a school bus in the School District as a part-
time employee of one of the Busing Companies.
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.
Lind, 16-547
July 25, 2016
Page 3
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.
"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.
Lind, 16-547
July 25, 2016
Page 4
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.
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
may not have any supervisory or overall responsibility as to the implementation or
administration of the contract with the governmental body.
It is administratively noted that the Public School Code provides in part:
§ 3-324. Not to be employed by or do business with
district; exceptions
Lind, 16-547
July 25, 2016
Page 5
(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…
….
(c) It shall not be a violation of this section for a school
district to contract for the purchase of goods or services from
a business with which a school director is associated to the
extent permitted by and in compliance with 65 Pa.C.S. Ch.
11 (relating to ethics standards and financial disclosure).
24 P.S. § 3-324(a), (c). On its face, Section 3-324(c) of the Public School Code permits
contracting between school districts and businesses with which school directors are
associated as long as the requirements of the Ethics Act are observed.
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 not prohibit you from working as
substitute teacher in the School District through the Service or driving a school bus in
the School District as a part-time employee of one of the Busing Companies while you
are serving as a School Director for the School District. However, if you would accept a
position with one of the aforesaid contractors to the School District (that is, the Service
or one of the Busing Companies), such contractor (the “Contractor”) would be a
business with which you are associated in your capacity as an employee, and, pursuant
to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in
your public capacity as a School Director with regard to matter(s) pertaining to the
Contractor or the contract (the “Contract”) between the School District and the
Contractor, including but not limited to overseeing work performed by the Contractor
relative to the Contract or participating in matter(s) involving renewal(s) of the Contract
or future contract(s) between the School District and the Contractor. In addition, you
generally would have a conflict of interest with regard to voting to approve payment(s) to
the Contractor.
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.
You are advised that the restrictions and requirements of Section 1103(f) of the
Ethics Act would have to be observed whenever applicable. Section 1103(f) would not
be applicable to the current Contract between the School District and the Contractor
given that the current Contract was not entered into at a time when the Contractor
would be considered a business with which you are associated. Cf., Shearer, Advice
15-539; Lewis, Advice 13-587; Bowers, Advice 07-588; Burkhart, Advice 03-535.
However, any contract renewal(s) or future contract(s) between the School District and
the Contractor would be subject to the restrictions and requirements of Section 1103(f)
of the Ethics Act to the extent that: (1) you would be a School District School Director;
(2) the Contractor would be a business with which you are associated; and (3) such
renewed or future contract(s) would be valued at $500.00 or more.
Lind, 16-547
July 25, 2016
Page 6
You are further advised that upon termination of your service as a School
Director for the School District, you would become a “former public official” subject to
the restrictions of Section 1103(g) of the Ethics Act.
§ 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).
The terms “represent,” “person,” and “governmental body with which a public
official or public employee is or has been associated” are specifically defined in the
Ethics Act as follows:
§ 1102. Definitions
"Represent."
To act on behalf of any other person in
any activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submitting bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
"Person."
A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body with which a public official
or public employee is or has been associated."
The
governmental body within State government or a political
subdivision by which the public official or employee is or has
been employed or to which the public official or employee is
or has been appointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102.
The term “person” is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public official/public employee himself,
Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur,
Opinion 95-007.
The term "represent" is also broadly defined to prohibit acting on behalf of any
person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official/public employee; (4) participating in any matters before the
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89-005.
The governmental body with which you would be deemed to have been
associated upon termination of your service as a School Director for the School District
Lind, 16-547
July 25, 2016
Page 7
would be the School District School Board in its entirety. Therefore, for the first year
following termination of your service as a School Director for the School District, Section
1103(g) of the Ethics Act would prohibit you from representing a “person,” including but
not limited to a Contractor with which you would be employed (that is, the Service or
one of the Busing Companies), before the School District School Board.
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.
Conclusion:
Based upon the submitted facts that: (1) you are a School Director
for the Waynesboro Area School District (“School District”), located in Franklin County,
Pennsylvania; (2) your current term of office as a School Director ends in 2017, and you
do not plan to seek reelection; (3) the School District utilizes a third-party teaching
service named “Source 4 Teachers” (“the Service”) for the provision of substitute
teaching services instead of hiring substitute teachers for the School District; (4) in
2015, the School District executed a contract with the Service that automatically renews
on an annual basis; (5) the School District has a three-year contract with three busing
companies (hereinafter collectively referred to as “the Busing Companies”) for the
provision of busing services; (6) any extension of the contract between the School
District and the Busing Companies or increase in busing fees will not occur until after
your term of office as a School Director has expired; (7) you are contemplating retiring
from your employment in the private sector in August 2016; and (8) you plan to either
work as a substitute teacher in local school districts through the Service or drive a
school bus for one of the Busing Companies after your retirement, you are advised as
follows.
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. Section 1103(a) of the Ethics Act would not prohibit you from working as
substitute teacher in the School District through the Service or driving a school bus in
the School District as a part-time employee of one of the Busing Companies while you
are serving as a School Director for the School District. However, if you would accept a
position with one of the aforesaid contractors to the School District (that is, the Service
or one of the Busing Companies), such contractor (the “Contractor”) would be a
business with which you are associated in your capacity as an employee, and, pursuant
to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in
your public capacity as a School Director with regard to matter(s) pertaining to the
Contractor or the contract (the “Contract”) between the School District and the
Contractor, including but not limited to overseeing work performed by the Contractor
relative to the Contract or participating in matter(s) involving renewal(s) of the Contract
or future contract(s) between the School District and the Contractor. In addition, you
generally would have a conflict of interest with regard to voting to approve payment(s) to
the Contractor. 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.
The restrictions and requirements of Section 1103(f) of the Ethics Act would have
to be observed whenever applicable. Section 1103(f) would not be applicable to the
current Contract between the School District and the Contractor given that the current
Contract was not entered into at a time when the Contractor would be considered a
business with which you are associated. However, any contract renewal(s) or future
contract(s) between the School District and the Contractor would be subject to the
restrictions and requirements of Section 1103(f) of the Ethics Act to the extent that: (1)
you would be a School District School Director; (2) the Contractor would be a business
Lind, 16-547
July 25, 2016
Page 8
with which you are associated; and (3) such renewed or future contract(s) would be
valued at $500.00 or more.
Upon termination of your service as a School Director for the School District, you
would become a “former public official” subject to the restrictions of Section 1103(g) of
the Ethics Act. The governmental body with which you would be deemed to have been
associated upon termination of your service as a School Director for the School District
would be the School District School Board in its entirety. Therefore, for the first year
following termination of your service as a School Director for the School District, Section
1103(g) of the Ethics Act would prohibit you from representing a “person,” including but
not limited to a Contractor with which you would be employed (that is, the Service or
one of the Busing Companies) before the School District School Board. 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