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HomeMy WebLinkAbout82-567 EtzweilerEarl Richard Etzweiler, Esq. Middleton, Roe, Etzweiler 101 North Front Street Harrisburg, PA 17101 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 August 6, 1982 ADVICE OF COUNSEL RE: School Director, Basketball Coach, Section 3(c) Dear Mr. Etzweiler: 82 -567 This responds to your letter of July 2, 1982, in which you requested advice from the State Ethics Commission. Issue: You ask whether it is appropriate for a school district to hire a member of the school board to fill a vacancy on the coaching staff of the district. Facts: As Solicitor for the Upper Dauphin Area School District you indicate that the girls basketball coach has resigned recently. One of the School Directors in the School District has had prior experience in the coaching field. The District will solicit applications for this position in an open and public manner. The concern has been expressed, however, that if the District is unable to obtain the services of a qualified coach to fill the vacancy, one member of the School Board would consider applying for and accep- ting the position as coach. You indicate that school directors receive no compensation for serving in that capacity and that the salary for the position of coach would be nominal. Discussion: We indicate initally that we may only address questions presented within the purview of the Ethics Act. Therefore, we begin our review with the indication that as an elected official the School Director is a "public official" as that term is defined in the Ethics Act. See 65 P.S. 402. As such, his conduct is governed by the provisions of the Ethics Act and in this case specific reference must be made to Section 3(c) of the Ethics Act, since you have indicated that the School Director in question has not as yet resigned his position on the Board. Section 3(c) of the Ethics Act provides as follows: State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Earl Richard Etzweiler, Esq. August 6, 1982 Page 2 (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family 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 has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. 403(c). Under the provisions of this Section it is clear that no public official may secure a contract valued at more than $500 with the governmental body with which he is associated (here the School District) without having obtained that contract after an open and public process. You indicate that the School District will make a solicitation for applications and announce the availability for this position publicly. Under these circumstances, the requirements of the "open and public process" as set forth in the Ethics Act will be met. Therefore, if a member of the School District, the School Director, is among the applicants and is awarded the contract, there would be no violation of Section 3(c) of the Ethics Act. Of course, in the context of reviewing the applications for this position, including his own, the School Director who is applying for the position would not be able to participate in discussions, reviews, or votes leading up to the decision of the Board as to the applicant to be selected to fill this post. Any such participation on the part of the director - applicant might give rise to a question as to whether he was using his public office to further his personal financial interests in obtaining such employment. See Section 3(a) of the Ethics Act and Section 1 of the Ethics Act, 65 P.S. 403(a) and 401, respectively. Conclusion: So long as the requirements of Section 3(c) of the Ethics Act are met in the process of the contract for employment that may be entered into between the School District and the Director, there is no per se prohibition in the Ethics Act against the selection of a School Director to fill the post as a coach within the School District. Earl Richard Etzweiler, Esq. August 6, 1982 Page 3 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 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 2.12. SSC /rdp Si cerely, andra S. ristianson General Co nsel