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HomeMy WebLinkAbout87-631 LecatesByron H. Lecates, Esquire 124 East Market Street York, PA 17401 -1271 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (7171 783-1610 November 18, 1987 ADVICE OF COUNSEL 87 - 631 Re: Simultaneous Service, School Superintendent and Memeber of Advisory Committee of Bank Dear Mr. LeCates: This responds to your letter of October 27, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether a school superintendent may also serve as or undertake the activity as a member of an advisory committee of the branch of a bank with which the school district maintains a banking relationship. Facts: You state that you represent Mr. Richard D. Hupper who is the Superintendent of the Southern York County School District. You further state that Mr. Hupper has been invited to serve as a member of the Advisory Committee to the Leader Heights Branch of the Peoples Bank of Glen Rock, York Township, York County, Pennsylvania. You further state that although the main office of the Peoples Bank is located in the Southern York County School District, the Leader Heights Branch is located in the Dallastown School District. It is further stated by you that each branch of the Peoples Bank has its own advisory committee which meets monthly for the purpose of reviewing and providing input to bank officers concerning loan applications. You state that Mr. Hupper, as an advisory board member, would receive approximately $45 for each meeting he attends. It is also noted by you that the Southern York County School District maintains a banking relationship with the Peoples Bank relative to various accounts, investments and loans and arrangements whereby taxpayers can pay school district taxes at the bank. Lastly, you note that the foregoing activities of the Southern York County School District with Peoples Bank do not involve the Leader Heights Office, Byron H. Lecates, Esquire November 18, 1987 Page 2 that is, those activities of the Southern York County School District are carried on through a different branch other than the Leader Heights Office with which Mr. Hupper is considering becoming a member of the Advisory Committee. You conclude by requesting advice as to whether Mr. Hupper, as a school superintendent of the Southern Leader Heights Advisory Committee of the Rock under the State Ethics Act. Discussion: In his capacity as a school superintendent, Mr. Hupper is a "public official" as that term h his is defined in the conform the si ons of §402. As a public o f f i c i a l , State Ethics Act. The most pertinent provision of the State Ethics Act is Section 3(a) of the Ethics Act which provide as follows: 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). Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or benefit for himself which is not provided for in law constitutes a financial gain other than compensation provided for by law. See McCutcheon v. State Ethics Commission, 77 Pa. mw. 529 93) See ( Ycabet v. 1987 at 834 1 9$6. Pa. Commw. However, Section 3(a) of the Ethics act would not prohibit Mr. Hupper from serving as school superintendent and as a member of the Advisory Committee of Peoples Bank of Glen Rock. Of course, under this p Mr. Hupper may not use his public position to secure any financial Peoples Bank of Glen Rock. However, as outlined above, there does not appear to be a real possibility of any as inherent ofnthecAdvisoryg if he were to serve both as a pu blic Committee of the Leader Heights Branch of Peoples Bank of Glen Rock. Basically, the Ethics Act does not state that it is inherently io f t ' h e a official to Glen Rock. The main Committee of the Leader 9 prohibition under the Ethics Act persons Commission groups a a public official /employee may no or entities whose interests may be adverse. See Alfano, 80 -007. In the situation outlined above, Mr. Hupper would not be serving entities with interests which are adverse to each other. Byron H. Lecates, Esquire November 18, 1987 Page 3 It is further provided in Section 3(b) of the Ethics Act: 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). Specifically, the Ethics Act provides that no public official may use his public office or confidential information received through his holding public office to obtain financial gain for himself or a business with which he is associated and no public official may receive anything of value, including the promise of future employment, on the understanding that his official conduct will be influenced thereby. See Section 3(a) and (b) of the Ethics Act, 65 P.S. 403(a) and (b). It is assumed that such a situation does not exist here. Reference is made not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Reference must also be made to Section 3(d) of the Ethics Act which allows the Commission to review other areas of conflicts of interests. Generally, the types of activities encompassed by this particular provision are generally determined through a review of the intent of the State Ethics Act. Generally, the State Ethics Act was promulgated in order to ensure the public that the interests of their officials do not conflict with the public trust or create the appearance of a conflict of interest. Thus, if any matter came before the Southern York County School District relating to the People's Bank of Glen Rock, you are advised that Mr. Hupper may not participate or vote in those matters. Furthermore, his abstention would have to be publicly noted as well as the reason for your abstention. Lastly, the Ethics Commission has only addressed your question under the Ethics Act; it has not considered the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act. Specifically, not addressed in this advice is the question of whether Mr. Hupper as school superintendent may accept the position on the Advisory Committee under the Public School Code of 1949, as amended. Advice regarding the propriety of this activity under the Public School Code must be addressed by the solicitor for the school district since that would not involve any interpretation of the State Ethics Act. Byron H. Lecates, Esquire November 18, 1987 Page 4 Conclusion: As a school superintendent, Mr. Hupper is a "public official" subject to the provisions of the State Ethics Act. Under the facts and circumstances outlined above, there is no inherent prohibition under the Ethics Act for Mr. Hupper to serve both as a public official and as a member of the Advisory Committee of the Leader Heights Branch of Peoples Bank of Glen Rock. In the event that any matter concerning the Peoples Bank of Glen Rock would come before the Sourthern York County School District, Mr. Hupper may not participate nor vote on those matters and he must note his abstention publicly and the reason for his abstention. Lastly, it is noted that this advice has only interpreted the Ethics Act and has not considered the applicability of any other statute, code, ordinance, regulation or other code of conduct and specifically has not addressed the permissibility of Mr. Hupper's membership on the Advisory Committee under 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 requester 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. VJD /sfd Sincerely, Vincent J. opko, General Counsel