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HomeMy WebLinkAbout85-533 AntounFrederic G. Antoun, Jr., Esquire Chambersburg Trust Building Chambersburg, PA 17201 Dear Mr. Antoun: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 April 15, 1985 ADVICE OF COUNSEL 85 -533 Re: Simultaneous Service, School Director, Bus Driver Different School District This responds to your request for advice from the State Ethics Commission dated March 29, 1985. Issue: Whether an independent contractor bus driver, working in a school district may serve as an elected school director in a different school district. Facts: You are the solicitor for the Southern Huntingdon County School District and have requested the advice of the State Ethics Commission in that capacity. The Southern Huntingdon County School District currently employs a bus driver as an independent contractor to pick up school children in the Southern Huntingdon County School District. In addition to picking up children from that school district, the bus driver also picks up several tuition students from a neighboring school district. The bus driver, who lives in the neighboring school district, desires to run for the office of school director in that neighboring school district. The employee /candidate has been advised that he will not be able to hold the office of school director in the neighboring school district and the position of independent contractor bus driver in the Southern Huntingdon County School District, because he picks up several children who are residents of the neighboring district, but attend Southern Huntingdon on a paid tuition basis. We will assume for the purpose of this advice that the school district where this individual seeks office has no authority, control or influence over the school district where this individual is employed or in relation to this specific employment. Mr. Frederic G. Antoun, Jr. April 15, 1985 Page 2 You have inquired as to any restrictions that would be placed upon this individual under the State Ethics Act. Discussion: Initially, it must be noted that the Ethics Commission may only address the issue presented herein under the State Ethics Act. 65 P.S. §401 et. seq. The Commission will not review this matter under the provisions of any other statute, code or rule or regulation. In this respect, we specifically note that we will not address this matter under the provisions of the School Code, 24 P.S. § §3 -322, 3 -324. As an elected School Director, this individual would be a public official as that term is defined in the State Ethcis Act. 65 P.S. §402. As such, his conduct as a Director must conform to the requirements ofthe Act. Generally, the State Ethics Act does not per se prohibit an individual from holding two governmental positions as long as such simultaneous service =is not conflicting. The Ethics Act does provide that: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). In this respect as a School Director, this individual could not use his position, to obtain such financial gain. For example, as a director this person could not award himself compensation or a contract for business with the school district without violating the Ethics Act. Additionally, this director would be prohibited from using any confidential information obtained as a director for similar purposes. Under the facts as set forth, it appears as though the director would not be in such a position. The director would be serving as an employee or independent contractor in a different school district than the one in which he serves as a director. Assuming that there is no interrelationship between these districts, there would be no potential violation of the above provisions. That is, as a director of one district he would have no authority control or influence over his employment in the other district. See Lace, 80 -002. ��� Mr. Frederic G. Antoun, Jr. April 15, 1985 Page 3 In order to be complete it should also be noted that the provisions of 3(c) of the Ethics Act must also be observed. That section provides that a public official, member of his immediate family or a business in which he is an officer director, employee, or owner may not contract with a governmental body in excess of $500, unless the contract has been awarded through an open and public process. 65 P.S. §403(c); Howard, 79 -044. In interpreting this provision, the Ethics Commission has ruled that the term governmental body as used in the above section refers to the governmental body with which the public official /employee is associated. Bryan, 80 -014; Lynch, 79 -047. Thus such a public official may contract with any governmental body other than the one with which he is associated. Such an official may even contract with his own governmental body so long as the open and public process noted above is observed. Motto, 80 -021 In the instant situation it appears as though the governmental body with which this potential director would be associated would be the district he :serves as a Director. Therefore unless the Southern Hundington County School District is part of or associated with the district he will serve as director there would be no 403(c) prohibitions. It should be noted for the sake of completeness that the open and public process requirement, if applicable would include: 1. prior public notice of the employment or contracting possibility; 2. sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; 3. public disclosure of all applications or proposals considered; and 4. public disclosure of the contract awarded or offered and accepted. See also Cantor, 82 -004. Finally, the Ethics Commission may address other areas of conflict pursuant to Section 403(d) of the Ethics Act. 65 P.S. §403 (d). Within this provision you must avoid any conflict of interest as well as the appearance thereof. Such a conflict could develop, if this individual as a director was called upon to review or participate in a matter that directly or indirectly affected his employment as a bus driver in the other district. In such a situation this individual must abstain from any participation in such matter. See Knuth, 82 -08 -C (2 -3); Knuth, 81 -41 -C (2 -2). Conclusion: The Ethics Act places no per se prohibition on the activity proposed. As an elected school director this individual would be a public official within the purview of the Ethics Act and his conduct must conform to the requirements thereof. Mr. Frederic G. Antoun, Jr. April 15, 1985 Page 4 Pursuant to Section 7(9)(ii), this 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, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJC /sfb Si ncerely, ohnntino General Counsel