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HomeMy WebLinkAbout89-550 GarberSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 6, 1989 Linda H. Garber 89 -550 P.O. Box 132 McConnellsburg, PA 17233 Re: Simultaneous Service, School Director and County Vo -Tech Instructor Dear Ms. Garber: This responds to your letter of May 10, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act imposes any prohibition or restrictions upon a school director from also serving or being employed as a county vo -tech instructor. Facts: You advise that you are currently an elected School Director of the Central Fulton School District and request a ruling from the Ethics Commission in light of an application which you have submitted for the position of an instructor in the County Vo -Tech Program. You question as to whether it would be necessary to resign from the School Board if you obtain such a position. You thus request a ruling as to whether such service would be permissible under the Ethics Act. Discussion: As a School Director for Central Fulton School District, you are a "public official" as that term is defined in the Ethics Act. 65 P.S. S402; 51 Pa. Code S1.1. 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 o b t a i n financial gain other than compensation Linda H. Garber June 6, 1989 Page 2 provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official /employee 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 /employee 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. However, under Section 3(a) of the Ethics Act there does not appear to be a real possibility of any financial gain or inherent conflict arising if you were to serve both as a public official /employee and as County Vo -Tech Instructor. Basically, the Ethics Act does not state that it is inherently incompatible for a public official /employee to serve or be employed as a County Vo -Tech Instructor. The main prohibition under the Ethics Act and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. See Alfano, 80 -007. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. 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 employment based on any understanding that the vote, official action, or judgment of the Linda H. Garber June 6, 1989 Page 3 public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Reference to Section 3(b) of the Ethics Act is made in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which must be observed, a public official /employee must neither offer nor accept anything of value on the understanding or with the intention that the public officials /employees judgment would be influenced thereby. It is assumed such a situation does not exist here. Reference to this Section is added 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. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of Section 7. 65 P.S. 403(d). However, under Section 3(d) of the State Ethics Act, the State Ethics Commission may address other areas of possible conflict of interest. 65 P.S. S403(d). The parameters of the types of activities encompassed by this provision of law may generally be determined by reviewing the purpose and intent of the Ethics Act. The Ethics Act was promulgated in order to ensure that the financial interests of public officials /employees do not conflict with the public trust or create the appearance of a conflict with the public trust. It is expressly assumed for purposes of this advice that you have not used your public office or confidential information to advance your own interest for the position of county vo -tech instructor. Additionally, it is assumed that the educational institution in which you would be teaching is a body, separate and apart from the Central Fulton School District. Lastly, it must be noted that the propriety of your proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct has not been addressed in this advice. Conclusion: As a School Director for Central Fulton School District, you are a "public official" subject to the provisions of the State Ethics Act. As a public official /employee, you may, consistent with Section 3(a) of the Ethics Act, simultaneously serve in the positions of School Director and County Vo -Tech Instructor, subject to the qualifications and limitations noted Linda H. Garber June 6, 1989 Page 4 above. Lastly, the propriety of the proposed course of 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. cerely, Vincent J. Dopko, General Counsel