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HomeMy WebLinkAbout86-543 BoyceMr. John G. Boyce 115 Uaktree Uri ve Levittown, NA 19U5 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 April 'L9, 1986 AUV ICE OF COUNSEL Re: Representation Restrictions, School Teacher Dear Mr. Boyce: 86 -543 This responds to your letter of April 7, 1986, wherein you requested the advice of the State Ethics Commission. Issue: Whether the State Ethics Act places any restrictions upon the future employment activities of a mathematics teacher. Facts: You advise tnat you are presently employed by the Centennial School District as a mathematics teacher. Un June 30, 1986, you will be retiriny. You advise that in addition to beiny a mathematics teacher you are also serviny as the yearbook advisor for the school yearbook. You have served in this capacity for the past eight years. You further advise that you are privately employed as a professional photoyrapher. The school by which you are employed will be lookiny for bids reyardiny photoyraphy for senior class pictures and for the yearbook work in 1987 -88 school year. The present contract runs out with the current photoyrapher in June of 1987. You anticipate biddiny on the photoyraphy portion of the yearbook contract at that time. In addition to the above, you have been offered to perform subcontracting work for the company that is currently perforrniny the yearbook work. in this respect, you would be compensated for doing some of the work in relation to the 1986 yearbook project. You have requested the advice of the State Ethics Commission as to whether there would be any prohibition placed upon your anticipated activities in relation to the 198/ Yearbook and in relation to your performance of subcontracting work for the current photoyrapher. Mr. John G. Boyce April 29, 1986 Page 2 Discussion: Generally, the State Ethics Act provides as follows: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403(e). While this provision of the State Ethics Act would appear to prohibit certain activities by individuals who are employed by the Commonwealth or a political subdivision therein, the initial question to be answered in the instant situation is whether you are a public employee within the purview of the State Ethics Act. The Ethics Act defines public employee as follows: Section 2. Definitions. "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonmi ni steri al nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; - (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. Clearly, from the foregoing, in your capacity as a teacher you are statutorily exempt from the definition of public employee as set forth in the State Ethics Act. Therefore, if you perform only as a teacher and serve functions only in that capacity you would not be a public employee subject to the one year restrictions as outlined above. In this respect, we will assume that as yearbook advisor, you performed no administrative function and are not involved in the expenditure of funds for the purpose of preparing the yearbook. Additionally, we will assume for the purpose of this advice, that you have no authority in awarding the contract to do the photography work for Mr. John G. Boyce April 29, 1986 Page 3 the yearbook. Sturga, 85 -567. In the event that our assumption in this respect is incorrect, then the analysis of this situation of course would be different. Thus, in light of the fact that you are not a public employee as defined in the State Ethics Act, the Act would place no restrictions upon your post employment activities or upon your performance of subcontracting work. Once again, your performance of subcontracting work for the current photagrapher is premised upon the fact that you have nothing whatsoever to do with the award of this contract to that company. It also assumes that you serve only as a teacher and in no other administrative capacity. In order to be complete in relation to the aforementioned provision of the State Ethics Act that prohibits an employee from representing any person before his governmental body for a period of one year after they leave governmental service, it appears as though your representation of either your own business or another business in an attempt to bid on the yearbook contract would occur in June, 1987, this would be one year after you terminated your service and, therefore, you would be outside of the restriction set forth in Section 3(e) even if that provision of law were applicable to you. Conclusion: As a mathematics teacher in a local high school you are not to be considered a public employee within the purview of the State Ethics Act. As such, the Ethics Act would not operate to place any prohibitions upon your private employment activities. The above result is primarily based upon the fact that you performed no functions other than as a teacher and that you are not involved to any degree in any administrative activities. As such, the provisions of the State Ethics Act would not be applicable under this situation. 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. Si n arlir n J. .•- i no Genera ounsel