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