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Home My WebLink About89-521 ZerbeMs. Cynthia Ann Zerbe 13 Stone Fence Road Milton, PA 17847 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 27, 1989 89 -521 Re: Conflict of Interest, School Director, Intermediate Unit Employee, Voting on Budget Dear Ms. Zerbe: This responds to your letter of February 16, 1988, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any restrictions or prohibition upon a school director from either voting on the school district budget or the general operating budget of an intermediate unit when the school director is employed in the transportation department of the intermediate unit. Facts: You state that you are a member of the Board of Directors of the Milton Area School District, hereinafter District, and are currently employed by its intermediate unit, Central Susquehanna Intermediate Unit, hereinafter CSIU as an Administrative Assistant in the transportation department. You then advise that CSIU provides transportation for approximately twenty District students per year. After stating that your solicitor advised you not to vote on either the Milton Budget or the CSIU general operating budget, you state that the District votes on the CSIU general operating budget only, that special education is handled separately and lastly, that transportation is a part of the special education budget which is not voted upon by the school districts. You then reference your attendance at a state conference and a PSBA workshop wherein you posed questions to the speakers on this matter; you state that you were advised that there would not be a conflict of interest on your part. You conclude by requesting advice from the Commission as to whether you may vote on the CSIU operating budget and secondly whether you may vote on the District budget. Ms. Cynthia Ann Zerbe March 27, 1989 Page 2 Discussion: As a member of the Board of Directors of the Milton Area School District, you are a "public official" subject to the provisions of the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such, your conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Section 3(a) of the Ethics Act provides: 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. S403(a). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a):. Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future Ms. Cynthia Ann Zerbe March 27, 1989 Page 3 employment based on any understanding that the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. The particular questions which you have posed have been previously addressed by the Commission. In Yaw, Opinion 85 -011, the Commission determined that two school directors who held upper management level positions with a college that was sponsored by their own and nineteen other participating school districts must abstain from participation and the deliberation in voting on matters involving their particular college. However, in Farris, Order 394, the Commission found that an employee of an intermediate unit who is also a director of a participating school district did not violate the Ethics Act when she voted to approve the intermediate unit budget. In the cited order, the Commission distinguished the Yaw, Opinion on the basis that the individuals there involved upper management level college employees as oppose to the cited order wherein the school director had no authority regarding the budget that the intermediate unit was proposing to the sponsoring districts. In applying the above decisions of the Commission to the facts of the instant matter, it would appear that your situation is similar to the Farris, case, in that you as Administrative Assistant in the transportation department would not be in an upper management level position and would not have any input regarding budgetary matters. In this regard, you have stated that the District only votes on CSIU's general operating budget and that special education is handled separately, that is, transportation is a part of the special education budget that is not voted by the District. Therefore under these facts and circumstances, you would not be precluded from voting on CSIU's general operating budget or the District's budget. Lastly, 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. Ms. Cynthia Ann Zerbe March 27, 1989 Page 4 Conclusion: As a School Director for Milton Area School District, you are a public official subject to the provisions of the State Ethics Act. Under the facts and circumstances outlined above, Section 3(a) of the Ethics Act would not preclude you as a School Director from either voting on the CSIU's general operating budget or the Milton Area School budget. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. such. This letter is a public record and will be made available as 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 52.12. Sincerely, incent J. Dopko, General Counsel