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HomeMy WebLinkAbout87-508 KnafelcSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 January 16, 1987 ADVICE OF COUNSEL Harry E. Knafelc, Esquire 664 Merchant Street Ambridge, PA 15003 Re: Member, School Board, Subsequent Employment with School District Dear Mr. Knafelc: 87 -508 This responds to your letter of January 6, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether a school director may obtain employment within the school district after he resigned his position as a member of that governmental body. Facts: You advise that you currently represent Dr. Bruno Razo who has been appointed to fill an unexpired term on the Ambridge Area School District's Board of Directors. You advise that the term, for which Mr. Razo was appointed, will expire the first week of December 1987. You further advise that Mr. Razo is a certified superintendent of schools in the Commonwealth of Pennsylvania. Pursuant to this certification, Mr. Razo has requested advice regarding whether he may be appointed as the superintendent of schools in the Ambridge Area School District after the term for which he was appointed has expired. You have requested the advice of the State Ethics Commission, on his behalf, regarding any restrictions that will be placed upon him within the purview of the State Ethics Act. We also note that you have referenced to the School Code in your letter of request and have indicated that certain prohibitions may exist under that provision of law. Discussion: As a member of a school board, Mr. Razo would clearly be a public official as that term is defined in the State Ethics Act. Jersey Shore Area School District v. Bittner, 81 Pa. Commw. Ct. 30, 472 A.2d 1183, (1984); Blaney, 84 -003. As such, Mr. Razo's conduct must conform to the requirements of the State Ethics Act. At the outset, it should be noted that while you have referenced to Section 324, 24 P.S. §3 -324, of the Public School Code of 1949, this Commission is not authorized to interpret or address that particular provision of law. The Commission, generally, only interprets provisions of the State Ethics Act. While there are occasions wherein the Harry E. Knafelc, Esquire January 16, 1987 Page 2 interpretation of other codes becomes necessary in order to make a determination of duties and responsibilites under the Ethics Act, it does not appear as though such an interpretation of the School Code is necessary in the instant situation. As such, you are advised that any restrictions that are outlined in the Public School Code, must be considered separate and apart from those that are set forth pursuant to the provisions of the State Ethics Act. Within the purview of the State Ethics Act, in relation to former public officials which Mr. Razo would become upon the termination of his service as a member of the Ambridge Area School Board, the.Act provides that: 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). Generally, under this provision of law, a former public official would be prohibited from representing a person or entity before his governmental body for a period of one year after such employment is terminated. In relation to this restriction, the Commission has determined that when such a former official or employee obtains employment with another governmental body or on a different level of government, the above restriction would not be applicable. Hagen, 84 -019; Pinto, 84 -021. The Commission has also determined that, when a public official or employee transfers positions within a governmental system, they do not become a former governmental employee or official. Gray, 83 -596; Cohen, 79 -045. In light of these decisions, there would be no 3(e) restriction upon Mr. Razo's employment. This is especically so in light of the fact that he, in his position of employment as superintendent, would still be representing the school district rather than any private interest. In addition to the foregoing, however, we must also review the situation in light of several other provisions of the State Ethics Act. Generally, the Act provides that: 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 for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Harry E. Knafelc, Esquire January 16, 1987 Page 3 Within this provision of law, Mr. Razo would be prohibited from using his current position as a school board member or any confidential information obtained therefrom to obtain a financial gain other than the compensation provided for by law. Thus, he could not, for example, vote or participate, to any extent, in the school district's decision with regard to the position or the compensation to be paid the school superintendent. In addition thereto, if the position for which -Mr. Razo would apply was specially created or if while he was a member of the school board, any other board action has been taken specifically in relation to this particular position that inured to the benefit of the employee who serves in that position, he either should not participate in matters related to that position or he could be prohibited from obtaining said position. This would be so not only under Section 403(a) above but also under provisions of the Act which permits the State Ethics Commission to address other areas of possible conflicts of interest. 65 P.S. §403(d). The Ethics Act also provides that: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). We make reference to this provision of law not to imply that there has or will be any implication thereof but merely to provide a complete response to your request. In this respect, there may be no offer or acceptance of anything of value to other board members in order to obtain said employment based upon the understanding that the official decision, of Mr. Razo, would be influenced thereby. Finally, as noted above, the Commission may address other areas of possible conflict. Within this provision of law, a public official must avoid all potential conflicts of interest. 65 P.S. §401. Such a conflict arises when the individual serves one or more interest that are adverse. Alfano, 80 -007. While the Commission can not envision every situation wherein such a conflict may exist, you are cautioned as to this provision and in the event that such a situation arises, you may want to seek further advice under the Ethics Act. In any event, it is advised that Mr. Razo should proceed with Harry E. Knafelc, Esquire January 16, 1987 Page 4 caution in relation to his decisions as a board director in relation to the position of superintendent and the individual currently serving in that position. This is particular so, if he envisions, at some point in time, applying for that position in the Ambridge Area School District. Teets, 85 -542. Conclusion: The Ethics Act places no per se prohibition upon the subsequent employment by a school board director as an employee of the school district. As a public official, this individual must conform to the requirements of the State Ethics Act as outlined above. Additionally, it is noted that this advice does not address questions and interpretations which may arise under the provisions of the Public School Code. 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. Sincerely, n on ino Gen Counsel