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HomeMy WebLinkAbout87-543 FrancisSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 10, 1987 ADVICE OF COUNSEL Mr. David E. Francis 87 -543 712 Partz Boulevard Altoona, PA 16601 Re: Candidacy For Public Office, Employee, Office Of The Auditor General, Conflict of Interest Dear Mr. Francis: This responds to your letter of March 5, 1987, wherein you requested the advice of the State Ethics Commission. Issue: Whether you may run for and serve in the office of Local School Director while you are simultaneously employed as an Auditor in the office of the Pennsylvania Auditor General. Facts: You advise that your are a candidate for the position of school director on the Altoona Area School Board. You also serve as a field auditor with the Department of the Auditor General, Bureau of School Audits. You indicate that in your position with the Office of the Auditor General, you are responsible for the examination of state subsidies and reimbursements along with expenditures as they relate to state funds received by school districts. Generally, in your position with the Auditor General you are responsible for examining books and financial records of school districts. An employee in this class audits accounting records of businesses or governmental agencies to determine compliance with prescribed standards or provisions of tax laws. Audits may relate to general accounting practices or to a single regulatory field and the employee may work alone or as a member of an audit team. Public contact duties comprise an important part of this work. The employee may also occassionally oversee the work of temporary assistants. We have reviewed your position specification 0361 and have incorporated that document herein by reference. You have requested the advice of the State Ethics Commission seeking to determine what, if any, prohibitions are imposed upon you in relation to the foregoing situation. Discussion: As a field auditor for the department of Auditor General, you are clearly a public employee as that term is defined in the State Ethics Act. 65 P.S. §402 et. seq. As such, your conduct must conform to the requirements of the State Ethics Act. Mr. David E. Francis April 9, 1987 Page 2 Generally, the State Ethics Act does not prohibit a public employee from participating in campaign activities or seeking another public office. Of course, this advice does not address any inherent incompatibility of such activity under any other code, statute, or administratively imposed requirement. This response is limited strictly to the question as presented within the purview of the State Ethics Act. All candidates for public office must, of course, observe the requirements of the Ethics Act and in so far as they are contained in section 3(b) of the law. That provision provides as follows: 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). In addition, any cadidate for public office must comply with the requirements of section 4(b) of the State Ethics Act which provides as follows: Section 4. Statement of financial interests required to be filed. (b) Each candidate for public office shall file a statement of financial interests for the preceding calendar year with the commission prior to filing a petition to appear on the ballot for election as a public official. A petition to appear on the ballot shall not be accepted by an election official unless the petition includes an affidavit that the candidate has filed the required statement of financial interests with the commission. 65 P.S. 404(b). In relation to whether you may simultaneously serve as a auditor for the department of the Auditor General and as a member of a local school board, the Ethics Act generally provides as follows: m r. David E. Francis April 9, 1987 Page 3 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). Within the above provision of law, you as a public employee, may not participate or use your public office to any extent to the benefit of the district which you are serving. In this respect, you may not participate in any audit by the Auditor General's office that relates to the school district on which you are a member. Additionally, you may not participate in any activity as a public employee that relates to the schools, the employees, or your fellow members and employees in the Altoona Area School District. Similarly, if the Altoona Area School Board has jurisdiction over any other institution, such as a community college or vocational school, your may not participate in review the financial matters of those entities as a public employee. Your abstention in such matters must be publicly noted and appropriately recorded. Additionally, the above provision of the Ethics Act prohibits you from using any confidential information that you obtain through your public position to the benefit of the school districts. In addition to the foregoing, the State Ethics Commission can address other areas of possible conflicts. 65 P.S. §403(d). The parameters of the types of activities encompassed by this provision of law, are generally determined through a review of the scope and intent of the Act. Generally, the Ethics Act was promulgated in order to ensure the public that the financial interests of their officials do not conflict with the public trust. 65 P.S. §401. A conflict of interest would arise in any occassion where you attempt to serve one or more interests that are adverse. While this Commission cannot invision every potential conflict of interest, you are advised to seek further advice in the event that a question should arise. For example, if you are auditing a neighboring school district and that district has had any types of transactions or dealings with your own school district, a potential conflict may arise. As such, you may need to seek the further advice of this Commission. Finally, you should be cautioned that no public official or public employee may use his office in order to obtain a financial gain other than the compensation provided by law. Within this provision, the State Ethics Commission has determined that you may not use your current position as an auditor to benefit your campaign for school board member. You may not, therefore, within this restriction use personnel, facilities, equipment, materials or the time of your current employer to enhance, conduct or support your campaign. See Cessar, 82 -002. Mr. David E. Francis April 9, 1987 Page 4 Conclusion: The State Ethics Act does not contain any per se or absolute prohibitions on your candidacy for public office while you are simultaneously serving as a public employee in a state agency. As a public employee, however, your conduct must conform to the requirements of the State Ethics Act as outlined above. In the event that specific questions as to conflicts of interest arise in the future, you may seek the further advice of this Commission. If you are elected to the office of school director, you may not participate in any matter as a public employee regarding the audit of schools or school districts related to the board on which you are serving. 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. ontino Act g General Counsel