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HomeMy WebLinkAbout90-505 LongSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 19, 1990 Mr. Jerry N. Long Clarion - Limestone Area School District R.D. #1, Box 205 Strattanville, PA 16258 Dear Mr. Long: 90 -505 Re: Conflict of Interest, Public Official, School Director, Area Vocational- Technical School, Treasurer. This responds to your letter of December 21, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition upon a school director or a "business with which he is associated" from serving on the board of directors of an area vocational- technical school and also serving as treasurer of the board. Facts: Mrs. Lynn Hepfl is a member of the board of school directors of the Clarion - Limestone Area School District and also serves on the board of directors of the Clarion County Area Vocational - Technical School (CCAVTS) wherein she was recently elected as treasurer of that board. Mrs. Hepfl provides contracting service to Trose and Associates which is an accounting firm that provides auditing serves to CCAVTS. Mrs. Hepfl is neither an employee of Trose and Associates nor an officer of that firm nor does she hold any stock in the firm and she does not participate in any way in the audits performed in CCAVTS accounts. Mrs. Hepfl will not accept a position of treasurer of the CCAVTS board if a conflict exists between her service to Trose and Associates and the position of treasurer of CCAVTS. Mrs. Hepfl's service to Trose and Associates consists of preparing payrolls for numerous clients other than CCAVTS. CCAVTS prepares the Vocational - Technical Schools payroll. You conclude by requesting advice as to whether Mrs. Hepfl may serve as treasure of CCAVTS. Discussion: As a school director for Clarion - Limestone School District, Mrs. Hepfl is a "public official" as that term is Mr. Jerry N. Long Page 2 defined in the Ethics Law. 65 P.S. 5402; 51 Pa. Code 51.1. As such, she is subject to the provisions of the Ethics Law and the restrictions therein are applicable to her. Generally, the Ethics Law places no per se prohibition upon a public official's employment in a business that contracts with his governmental body. Section 3(a) of the Ethics Law provides: Restricted Activities No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined under the Ethics Law: "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. "Conflict" or "conflict of interest" 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 or 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 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, Mr. Jerry N. Long Page 3 Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Initially, it is necessary to determine the relationship between Mrs. Hepfl and Trose and Associates. Although it is asserted that she is not an employee of Trose and Associates, it is noted that she does provide a "contracted service" to Trose and Associates. Accordingly, since Mrs. Hepfl is providing a service to Trose and Associates and is receiving compensation for that service, it appears that an employment situation may exist. Therefore, it will be assumed for purposes of this advice that Trose and Associates is a business with which Mrs. Hepfl is associated as that term is defined under the Ethics Law. In applying the provisions of Section 3(a) of the Ethics Law and the definitions quoted above, the Ethics Law would not prohibit Mrs. Hepfl from serving as treasurer of the CCAVTS board. See Fletcher, Opinion 89 -018 where the Commission determined that a school director could be employed by a contractor who transported school students in the district but could not participate in matters involving the business with which she was associated and also in matters concerning transportation of school students. In applying the cited opinion to the instant matter, Mrs. Hepfl could serve as treasurer for the CCAVTS board; however, she could not participate as a board member in matters involving Trose and Associates and must publicly disclose that fact as well as file a written memorandum with the secretary recording the minutes as required by Section 3(j) of the Ethics Law. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation of 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. Specifically not addressed is the applicability of the Public School Code. Conclusion: Mrs. Hepfl as a member of the board of school directors of the Clarion - Limestone School District and board of directors of the Clarion County Area Vocational - Technical School is a public official subject to the provisions of the Ethics Law. Although Section 3(a) of the Ethics Law would not preclude Mrs. Hepfl from serving as the treasurer of the CCAVTS, she could not participate as a board member in matters involving Trose and Associates, a firm for which she provides contractual services. Mr. Jerry N. Long Page 4 such. In addition, the requirements of Section 3(j) of the Ethics Law outlined above must be observed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 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 §2.12. Sincerely, Vincent . Dopko, Chief Counsel