Loading...
HomeMy WebLinkAbout84-579 MillerMr. Richard K. Miller 775 S. Humer Street Enola, PA 17025 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 June 27, 1984 ADVICE OF COUNSEL 84 -579 RE: East Pennsboro School District, Arbitration, Prior Employment Dear Mr. Miller: This responds to your letter of June 8, 1984, in which you requested Advice from the State Ethics Commission. Issue: You ask whether a conflict of interest arises as a result of your membership on the Board of Directors of East Pennsboro School District and your prior employment by the School District and your association with the taxpayers group which had taken positions regarding a matter currently before the Board. Facts: You indicate that you are currently serving as a member of the Board of Directors of the East Pennsboro School District, hereinafter the Board and the District respectively. You assumed your post as a member of the Board in December, 1981. Prior to assuming your role as School Director you had been employed by the District as a teacher. Your employment with the District as a teacher ended in December, 1979. The first qestion that has arisen is whether you may participate as a member of the Board and decisions of the Board relating to a matter or judgment of arbitration and whether you may participate as a Board member in voting on the issue of the judgment which is based on questions arising out of the 180 -day rule of pupil instruction as set forth in Section 1501 of the Public School Code. Specifically, you indicate that the grievance was filed by the East Pennsboro Area Education Association on June 18, 1980. The Board is currently involved in the discussion regarding its decision to accept or appeal the judgment of arbitration which was ordered by the Pennsylvania Labor Relations Board on or about May 12, 1981. This arbitration may result in the award of Mr. Richard K. Miller June 27, 1984 Page 2 compensation to the grievaets for "weeks ending June 12, 1980 and June 28, 1980 ". The order to arbitrate has been challenged at various levels of the State Courts. however, it has been affirmed b the State Supreme Court as of May 2, 1984. Apparently, and we will a- sur,r€ for purposes of our response that even under this arbitration award as affirmed you wou' d not be entitled to any compensation, if eventually awarded and paid with respect to this grievance. This, we assume, is primarily because your tenuee as a teacher within the School District ended as of December 1979, and that therefore, there would not be any entitlement to compensation for the weeks described in the compensation - grievance award, that is June 12, 1980 and June 28, 1980. Additionally, you have indicated that even if you would be entitled to any compensation you would not accept any such compensation as a result of this grievance-award. There has been a second question raised resulting from some opinion rendered or intimation made by the Board solicitor that a conflict also arises insofar as you are or were a member of a taxpayer's group which petitioned the County Court for the removal of the Board (prior to your assumption of office) which -allure to adhere to Section 1501 of the Public School Code regarding the 180 -day rule. Apparently, your objection to the Board's handling of the issue regarding the 180 -day rule was one of the motivating reasons for you to seek and to become elected as a member of the Board in this District. Discussion: As an elected School Board Director you are a public official as that term is defined in the Ethics Act. As a public official your conduct must conform to the requirements of the Ethics Act. The specific provisions of the Ethics Act which may be impacted here are Section 3(a), 65 P.S. 403(a) and Section 1 of the Ethics Act, 65 P.S. 401. These Sections are reprinted below for easy reference. 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 foe himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Section 1. Purpose. The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial g-in through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the Mr. Richard K. Miller June 27, 1984 Page 3 people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. As can be seen from these provisions there is a general prohibition that you may not use your public office for your personal financial gain. However, on these facts there is no indication that in your voting on the question of the proper interpretation or enforcement of the 180 -day rule that you would be in a position to utilize your office for your personal financial gain. With respect to this general question as to your participation given your prior association with the taxpayers' group, we find no evidence or opportunity for you to acquire personal financial gain through your public office as a Board member based upon your participation and Board decisions on this issue in general. This question of your participation in this matter based upon the argument that you may have "pre- determined" or "pre- judged" the issue of the 180 -day rule's proper interpretation, is fundamentally not within the jurisdiction of the Ethics Act or the Commission to resolve. As I understand this argument it might be basically that as a Board member, because of your participation in the citizens' group and having taken a position with respect to the issue of the proper interpretation or application of the 180 -day rule you may not be totally impartial or unbiased with respect to the Board's decisions on this issue. However, if this is the argument or the basis upon which a conflict of interest allegation has arisen, the Ethics Commission must state that it has no role in providing an answer to this question because our jurisdiction is strictly limited to the determinations of whether or not your duties and responsibilities under the Ethics Act have been met. Next, we will address the question of whether or not you may, as a Board member, participate in any actions relating to the judgment of arbitration. We view this question as separate from the question of whether or not you as a Board member may participate in any manner in voting on the issue of the judgment as theoretically based upon questioning the 180 -day rule regarding pupil instruction. As to whether you may participate in decisions of the Board regarding an arbitration or grievance proceeding, a different analysis may be required, because there is a question that your financial interests as a former teacher might be affected by the Board's decisions to appeal, pay, etc. this award. Mr. Richard K. Miller June 27, 1984 Page 4 Under these facts and circumstances, there is no apparent conflict between you excercising your role as a member of the Board and your financial interests. Because you will not participate in this award or payment. As a member of the Board you are being asked to review the question of accepting, appealing, or paying a grievance - arbitration award in which you would not have or would reject any personal financial interest. Under these circumstances, there would be no conflict under Section 3(a) of the Ethics Act if you were to vote as a member of the Board on the acceptance, appealing, or payment of such a grievance - arbitration award. However, should there be a circumstance under which you might be eligible for compensation pursuant to this litigation we would be compelled to review the question again and possibly revise our determination to require your abstention with respect to such questions which might be presented to the Board with respect to this litigation. Conclusion: Under the circumstances as you have outlined them above, the Ethics Act is not implicated with respect to the general question of whether or not, as a public official, you may vote on matters dealing with the 180 -day rule, in general, because of your prior association with the taxpayers' group which had taken a position with respect to this rule. Insofar as the School Board is being asked to address questions of accepting, appealing, or prying an arbitration - grievance award in which you have no financial interest, you may, consistent with the Ethics Act, vote on such matters as a member of the Board. 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 full Commission w i l l be scheduled and a formal Opinion from the Commission w i l l 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, S SC /n a Sincerely, `""Si'ndra S. Cij i stianson General Couti sel