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HomeMy WebLinkAbout17-516 DunchuckSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.C. BOX 11470 HARRISBURG, PA 17108-1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL March 21, 2017 To the Requester: Mr. William F. Dunchuck Dear Mr. Dunchuck: 17 -516 This responds to your letter dated January 16, 2017, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether, pursuant to Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), an individual who retired from employment with a school district and would be subsequently elected as a school director in the school district Would have a conflict of interest with regard to participating in discussions or votes of the school district school board pertaining to hospitalization, vision, or dental coverage, where the individual: (1) receives school district -paid hospitalization coverage for himself and his wife until age 65 as part of his contract with the school district; and (2) is paying for vision and dental coverage under the federal Consolidated Omnibus BBudget Reconciliation Act ( "COBRA ") for an eighteen -month period. Facts: You request an advisory from the Commission based upon submitted a�ts—that may be fairly summarized as follows. On June 30, 2016, you retired from your employment as the Business Manager for the Blacklick Valley School District ( "School District "). You receive School District- - paid hospitalization coversge for you and your wife until age 65 as part of your contract with the school district. You are paying for vision and dental coverage under COBRA for an eighteen -month period. You are considering seeking election as a School Director for the School District in 2017. Based upon the above submitted facts, you seek guidance as to whether, if you would be elected as a School Director for the School District, you would have a conflict of interest with regard to participating in discussions or votes of the School District School Board pertaining to hospitalization, vision, or dental coverage. FAX: (717) 787 -0806 0 Web Site: www.ethics.state . pa.us 0 e-mail: ethics (�state, a.us Dunchuck, 17 -516 March 21, 2017 Page 2 Discussion; It is initial) noted that pursuant to Sections 1107(10) and 1107(11) of e tics Act, 65 Pa.C.S. y§§ 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 discllosed all of the material facts. If you would be elected as a School Director for the School District, upon assuming said position, you would in that capacity be a public official subject to the provisions of the Ethics Act. Sections 1103(a) and 11030) 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. 0) 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), 0). 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 Dunchuck, 17 -516 aryl ch 21, 2017 Page 3 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 he 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. 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 officiallpublic 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 11030) 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 I 103 a o t e Ethics Act, a public officiallpublic employee: ... must act in such a way as to put his [officelpublic 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, su�,ra, 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. A conflict of interest would not exist to the extent the "de minimis exclusion" and/or the "class /subclass exclusion" set forth within the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. §'1102, would be applicable. Dunchuck, 17 -516 armor 2017 Page 4 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; Schweinsburq, Order 900. In order for the class/subclass exclusion to a ply, two criteria must be met: (1) the affected public official /public employee, immedia a family member, or business with which the public official /public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same de ree" (in no way differently) than the other members of the classlsubclass. 65 Pa.C.S. §� 1102; see, Kablack, Opinion 02 -003; Rubenstein, Opinion 01 -007. The first criterion of the excl on is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual /business in question and the other members of the class/subclass are reasonably affected to the same degree by the proposed action. Kablack, supra. Additionally, the Commission has determined that the approval of pre - fixed, routine, uncontested bills does not in and of itself rise to the level of a violation of Section 1103(a) of the Ethics Act. See, Yezzi, Order 825 at 58; Krushinski, Order 168; Brooks, Opinion 89 -023; Maholick, U—pin ion 90 -010; Pizonka /RiederOppiinion 09 -007. In applying the above provisions of the Ethics Act to your advisory request, you are advised as follows. Your wife is a member of your immediate family as that term is defined in the Ethics Act. Upon taking office as a School Director for the School District, you would have a conflict of interest as to discussion(s) or vote(s) of the School District School Board pertaining to hospitalization, vision, or dental coverage if: (1) you would be consciously aware of a private pecuniary benefit for you or your wife; your action(s) would constitute one or more specific steps to attain that benefit; and �2) 3) neither the de minimis exclusion nor the class/subclass exclusion set forth within the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable. Cf. Kistler, supra. It is parenthetically noted that the submitted facts suggest —but do not enable a conclusive determination —that School District expenditures for hospitalization coverage for you and your wife might be pre- fixed, routine, and uncontested. You are advised that you would not have a conflict of interest with regard to voting on School District payment(s) for hos italization coverage that would include coverage for you and your wife as Ion asps the class/subclass exclusion would be applicable as to such expenditure ggs ; or expenditure(s) would be re- fixed, routine, and uncontested. t)� {) p 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{x') of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. 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 otther 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. Dunchuck, 17 -516 ar iDl_21, 2017 Page 5 Conclusion: Based upon the submitted facts that: (1) on June 30, 2016, you retired from your employment as the Business Manager for the Blacklick Valley School District ( "School District'); (2) you receive School District -paid hospitalization coverage for you and your wife until age 65 as part of your contract with the school district; (3) you are pa ing for vision and dental coverage under COBRA for an eighteen -month period; and {4 you are considering seeking election as a School Director for the School District in 201 - you are advised as follows. � Y If you would be elected as a School Director for the School District, upon assuming said position, you would in that capacity be a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seg. Your wife is a member of your immediate family as that term is defined in the Ett ics Act. Upon taking office as a School Director for the School District, you would have a conflict of interest as to discussion(s) or vote(s) of the School District School Board pertaining to hospitalization, vision, or dental coverage if: (1) you would be consciously aware of a private pecuniary benefit for you or your wife; (2) your action(s) would constitute one or more specific steps to attain that benefit; and (3} neither the de minimis exclusion nor the class/subclass exclusion set forth within thhe Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, would be applicable. It is parenthetically noted that the submitted facts suggest —but do not enable a conclusive determination —that School District expenditures for hospitalization coverage for you and your wife might be pre- fixed, routine, and uncontested. You are advised that you would not have a conflict of interest with regard to voting on School District payment(s) for hos italization coverage that would include coverage for you and your wife as Ion as 1) the class/subclass exclusion would be applicable as to such expenditure s • or such expenditure(s) would be re- fixed, routine, and uncontested. p �), () p 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 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. 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 writingg and must be actual) received at the Commission within thirty (30) days of the date ot this Advice pursuant to 51 Pa. Code § a3.2(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 Dunchuck, 17 -516 March 21, 2017 Page 6 file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely,��� /�� ^l ///��� Robin M. Hittie Chief Counsel