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HomeMy WebLinkAbout83-501 PotashCharles Potash, Solicitor Upper Dublin School District c/o Law Offices Wisler, Pearlstine, Talone, Craig and Garrity 515 Swede Street Norristown, PA 19401 -4880 RE: School Board Member, Township Data Processing Contract Dear Mr. Potash: Msili g Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 January 6, 1983 ADVICE OF COUNSEL 83 - 501 This responds to your letter of December 13, 1982, in which you requested advice from the State Ethics Commission. Issue: You question whether there is a conflict of interest for a shool board member who is an officer of a data processing company which will potentially service a township whose boundaries are co- terminous with the School District? Facts: You represent, as solicitor, the Upper Dublin School District and request advice on behalf of the member of the school board. This school board member is vice - president of operations and administration in a data processing company, hereinafter the Company. The Company wishes to enter into a contract with the township, whose confines are co- terminous with the school district, to provide data processing services to the township. The township had been a customer or client of the Company ten years ago, but it had switched two years ago to a different data processor and had installed its own computer terminals. However, the township now wishes, for economic reasons, to discontinue the use of its own terminal and to re- establish its data processing relationship with the Company. The original relationship between the Company and the township pre -dated the election of the school board member to the school board. Likewise, the new contract between the township and the. Company originated through a third party (precedent of the now defunct data processing company) and not with the school board member associated with the Company. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Charles Potash, Solicitor January 6, 1983 Page 2 As a school board member, your client is a "public official" as defined Ethics Act. In the circumstances you present, however, there does not appear to be any prohibition or restriction to be placed on the proposed contract between the township and the Company. Specifically, the pertinent provision of the Ethics Act might appear to be Section 3(c) of the Ethics Act, 65 P.S. 403(c). This section requires that an open and public process be initiated where any business with which a public official is a director, officer, owner or holder of stock exceeding 5% of the business seeks to contract with the governmental body with which the official is associated. Bryan, 80 -014 and Lench, 79 -047. However, in this instance, the official in question, the school board member who is vice- president of the Company, does not seek to contract with the school board. Rather, as I understand the factual situations, the contract itself would be between the Company and the township. The township is not to be deemed the "governmental body" with which the school board member is associated. Therefore, Section 3(c) of the Ethics Act presents no obstacle to the proposed contract between the township and the Company. The mere fact that the township may be co- terminous with the school district does not necessarily alter this conclusion. Unless there can be shown that in some manner the public official, in this case, the school director, has used his public office as a school director or confidential information acquired by holding that office to the financial advantage of a business (the Company) with which he is associated, there would be no violation of the Ethics Act. Conclusion: There is no conflict of interest, per se, for a school director, who is an officer of a data processing company, which will potentially serve or contract with a township, which is co- terminous with the school district. Of course, the school director may not use confidential information acquired as a school director to the financial advantage of his Company. Pursuant to Section 7(9)(ii), this Advice is a complete defense 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. Charles Potash, Solicitor January 6, 1983 Page 3 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 Sandra S. Christianson General Counsel