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HomeMy WebLinkAbout81-605 KulikJoseph M. Kulik, Esquire 121 Lorish Road McKees Rocks, PA 15136 Dear Mr. Kulik: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 August 25, 1981 ADVICE OF COUNSEL RE: Section 3, School Board Directors 81 -605 This responds to your letter of July 17, 1981, in which you, as a member of the Montour School District Board of Directors, requested an opinion from the Ethics Commission. Issue: You requested advice as to whether a conflict of interest would be created by your acceptance of employment in the law offices of the school district's solicitor. Facts: You informed us that you are a member of the Montour School District Board of Directors. You have recently graduated from law school and are seeking employment with Peter J. King, Esquire. Mr. King is the Solicitor for the Montour School District. You state that as a School Board member you would not vote on the selection of Mr. King as Solicitor or on the salary paid to the Solicitor. Mr. King would not assign you to School District matters except in cases of great urgency. Discussion: The Ethics Act, 65 P.S. §401 et seq., defines public official as any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or political subdivision thereof. Id, §402. As a School Board member you are a public official subject to the Ethics Act. Coon, 79 -016. The Act does not forbid a public official from accepting employment with concerns that do business with the official's governmental body provided certain provisions of the Act are followed. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Joseph M. Kulik, Esquire August 25, 1981 Page 2 Section 3(a) of the statute states that no public official shall use his public offfice or any confidential information received through holding public office to obtain financial gain for himself or a business with which he is associated, 65 P.S. 5403(a). Therefore, you may not use your position on the School Board or confidential informa- tion received as a School Board member to obtain financial gain for yourself or for Mr. King's law firm. The statute further provides that no person shall offer, or a public official accept, anything of value based on any understanding that the official's vote or other action would be influenced thereby. 65 P.S. §403(b). The phrase "anything of value" has been defined to include the promise of future employment. Mr. King could not offer, nor could you accept, a promise of future employment with Mr. King based on any understanding that your actions as a School Board member would be affected thereby. Section 3(c) of the Ethics Act states that no public official or any business in which the person is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body unless the contract is awared in an open and public process. 65 P.S. 5403(c). If Mr. King's contract with the school district is valued at more than $500, and if your relation- ship with the firm falls within these parameters outlined in Section 3(c), any contract between the School Board and Mr. King's firm must be awarded in an open and public process allowing for: (1) Prior public notice; and (2) public disclosure of all proposals considered; and - (3) public disclosure of the award of the contract. Howard, 79 -044. To avoid even the appearance of a conflict of interest you must abstain from discussions and /or votes on the selection and compensation of the Solicitor and place the reason for your abstention on the public record. Sowers, 80 -050. Joseph M. Kulik, Esquire August 25, 1981 Page 3 Conclusion: A School Board member is a public official subject to the Ethics Act. There is no inherent conflict of interest in you, a School Board member, accepting employment with the school district solicitor or his firm. You may not use your position on the School Board or confidential infor- mation received as a member to obtain financial gain for yourself or your actual or propsective employer. You may not accept employment based on any understanding that your official actions as a School Board member would be influ- enced thereby. If the solicitor's contract is valued at more than $500 and you are an officer, director, or stockholder of 5% or more of the firm, the contract must be awarded in an open and public process including: (1) Prior public notice; and (2) public disclosure of all proposals considered; and (3) public disclosure of the award of the contract. You may not engage in discussions and /or vote on the selection and compensation of the solicitor in any event, and must place the reason for your abstention on the public record. 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SW /rdp Si cerely, ndra S. Chr'.stianson General Cou 1