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HomeMy WebLinkAbout88-542 BartiromoAnthony P. Bartiromo, Esquire Chartiers Valley School District 2030 Swallow Hill Road Pittsburgh, PA 15220 -1699 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 7, 1988 ADVICE OF COUNSEL 88 - 542 Re: Conflict of Interest, Public Official, Immediate Family, Father Dear Mr. Bartiromo: This responds to your letter of February 17, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions upon a School Director from participating or voting for a contract between the School Board and School Administrators Association when the School Director's father is a member of the Association. Facts: As solicitor for the Chartiers Valley School District, you request advice from the State Ethics Commission as to whether a school director may participate or vote in negotiations between the School Board and the School Administrative Association which represents principals and other supervisors in a wage contract when the father of one of the school directors is a member of the School Administrative Association. Discussion: As a School Director for Chartiers Valley School District, the School Director is a public official within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. As such, he is subject to the provisions of the Ethics Act. Section 3(a) of the Ethics Act provides: 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). Anthony P. Bartiromo, Esquire April 7, 1988 Page 2 Section 3(a) basically provides that a public official or employee may not use his public office or confidential information to obtain a financial gain other than compensation as provided for by law for himself or a member of his immediate family or a business with which he is associated. 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 or a member of his immediate family which is not provided for in law constitutes a- "financial gain other than compensation provided for by law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. ComMw. 529 466 A.2d 283 (1983). See also Yocabet v. State Ethics Commission, Pa. Comnw. , 531 A.2d 536 (1987). Thus, under this provision, a public official may not use his public position to secure benefits for himself or a member of his immediate family which are not provided for by law, Domalakes, Opinion 85 -010; likewise, the receipt of private financial gain or benefit through use of office is not permitted under this section, Huff, Opinion 84 -015. Section 2. Definitions. "Immediate family." 14 spouse residing in the person's household and minor dependent children. 65 P.S. 402. Since immediate family is defined to only include a spouse or minor dependent child, the provision of Section 3(a) would not include father. Therefore, under Section 3(a) of the Ethics Act and the definition of "immediate family ", there is no prohibition upon a school director as to participating or voting as to a wage contract with the School Administrative Association of which his father is a member. Section 3(b) of the Ethics Act provides: 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). Anthony P. Bartiromo, Esquire April 7, 1988 Page 3 Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced 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. Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to paragraph (9) of section 7. 65 P.S. 403(d). Under the above provision of law, the Ethics Commission, however, is also empowered to address other areas of possible conflict pursuant to Section 3(d). 65 P.S. §403(d). Fritzinger, Opinion 80 -008; DeBenedictis, Opinion 86 -002. The parameters of the type of activity encompassed by this provision are generally reviewed in light of the preamble to the Ethics Act which enunciates 'the legislative intent of the Act. The intent and purpose of the Act is to strengthen the faith and confidence of the people in their government by assuring the public that the financial interests of the holders of public office present neither a conflict nor the appearance of a conflict with the public trust. A public official or employee, pursuant to this provision, is to ensure that their personal financial interests present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. §401. Such a conflict may exist where an individual represents one or more adverse interests, Alfano, Opinion 80 -007; where an individual serves in positions that are incompatible or conflicting; Nelson, Opinion 85 -009, or where such an official or employee accepts compensation to which he is not entitled. Domalakes, supra. In relation to the above cited sections of law, the Commission has determined that the definitional limitations applicable to the other Sections of the Act are not relevant to questions addressed under Section 3(d). Leete, Opinion 82 -005. As such, the Commission has placed restrictions upon various actions of public officials and employees when acting upon matters that involve relatives outside of the previously cited definition. O'Reilly, Opinion 83 -012. Thus, for example, the Commission has determined that a public official may not participate in the employment selection process where the official's adult son is an applicant. See O'Reilly, Opinion 83 -012. Anthony P. Bartiromo, Esquire April 7, 1988 Page 4 Likewise, in Leete, Opinion 82 -005, the Commission concluded that a county commissioner could not sit on a salary board and vote the salary of her brother as Director of the county planning agency without engaging in conduct which would appear to conflict with the public trust. See also Lewis, Advice 85 -558; Ceraso, Advice 85 -575. Although there is no prohibition under Section 3(a) of the'Ethics Act as previously noted as to the above activity, the Commission has determined under Section 3(d) that this type of activity creates the appearance of a conflict of interest where a public official uses his public office in of a relative who is not within the definition of "immediate family." Therefore, under Section 3(d) of the Ethics Act, school director may not use his public office to participate in the contract negotiations so as to avoid the appearance of a conflict of interest. As to the question of whether the school di rector may vote to approve the contract under Section 3(d) of the Ethics Act, the Ethics Commission has determined in a case involving a school di rector's voting upon an agreement with the teachers union when his spouse was a member of that union that if the school director properly refrained from participating in the meetings and negotiations and did not use any confidential information to benefit his spouse, then the school director could vote on the final agreement provided it did not affect his spouse any more than any other member of that bargaining unit. See Krier, Opinion 84 -002. Therefore, under Section 3(d) of the Ethics Act, although the school director could not participate in the negotiations with the School Administrative Association of which his father is a member, he could vote on the final ratification of that agreement provided the agreement did not affect his father any more than any other member of the Association. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a School Director for Chartiers Valley School District, the school director is a public official subject to the provisions of the State Ethics Act. His father is not a member of "immediate family" as that term is defined in the Ethics Act. Although there is no prohibition under Section 3(a) of the Ethics Act upon the use of office for his father, under Section 3(d) of the Ethics Act, the school director may not use public office to participate in the negotiations so as to avoid the appearance of a conflict of interest, although he may vote upon the final ratification of the contract provided that his father is not affected any more or less than any other member of the Association in the contract. Anthony P. Bartiromo, Esquire April 7, 1988 Page 5 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 7 (9) (i i ), 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 w i l l 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 erely, Vincent J Dopko General Counsel