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HomeMy WebLinkAbout88-580 VochkoDear Mr. Vochko: Issue: You restrictions Education in capacity as Pennsylvania renovation or Mr. Paul R. Vochko, Ed. D. Educational Consultant Four North Shore Center Pittsburgh, PA 15212 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 9, 1988 88 - 580 Re: Conflict of Interest, Pennsylvania State Board of Education Member, Employee of Architectural Firm, Submission of PLANCON forms from Architectural Firm to Department of Education This responds to your letter of April 22, 1988 in which yor requested advice from the State Ethics Commission. ask whether the State Ethics Act presents any or prohibition upon a member of the State Board cf completing and submitting PLANCON forms in his an employee of an architectural firm to the Department of Education for approval as to building projects for school districts. Facts: In your advice request you state that you are ai employee of N. John Cunzolo and Associates, hereinafter Associates, as well as a member of the Pennsylvania State Board of Education and a former superintendent of the Ambridge Area School District. Part of your duties with Associates consist of overseeing the completion of PLANCON forms for different school districts who have contacted the Associates regarding renovation or building projects in the school district. After receiving all of the data and information which is forwarded to you, you state that you proceed to complete the necessary PLANCON forms and send them to Mr. Brad Furey who is a Supervisor in the Bureau of Planning and Construction for his review and assignment to some person in the Department who reviews and then approves or rejects the form. You state that if the form is rejected, it is then returned to you for correction and resubmittal to the Department for approval. You then state that the forms have to Mr. Paul R. Vochko, Ed. D. June 9, 1988 Page 2 have all the necessary data and correct information in order to receive approval and that no outside influence effec`s use Department's decision. You then outline in a step by step fashion a completion of the PLANCON form as follows: "Page 1. Page 2a,b,c. Page 3a,b,c. Page 4a,b,c. Page 5a,b,c,d. Page 6. Page 7a,b. Page 8a -e. Part E. Part F. Part G. Official notice of School Board approval of the project and liaison officer usually Superintendent of Schools. Instruction and forms for existing bu; o completed by School District and Arcni• - ecc. Composite of buildings owned completed )y School District and Architect. Educational Specifications written by Schoo District; ex. "Belle Vernon School District Pennsylvania Department of Education projected enrollments' figures. Project description written by an architect of the firm; page 2 -10 example. Comparative design instructions and forms completed by an architect. Space and Capacity completed by School District and an architect. Parts C, 7 -21. School Board approved forms sent to EPA, DER, Planning Commission, PennDot, etc. for approval, Part D. Financial Section completed by School District, Investment Banker, Bond Council and School Board Solicitor. Application for Architectural Schematics and Preliminary Review. A meeting is held in Harrisburg with Architect, Superintendent, School Board Members and myself to review and seek approval t o start construction /renovation. Final approval of plans group usually attends.) Completion and submission on bids) prepared by Architect. and drawing (same of cost data (based School District Mr. Paul R. Vochko, Ed. D. June 9, 1988 Page 3 Part H. Regarding the PLANCON forms, you state that your function is simply to complete the form and insure that the time schedule i. followed. You also state that your direction is with the school district and the architectural firm and that the Department Education dictates the proper data needed for approval for the form. After stating that you work with the Department if Education employees and have no influence in their approvirj ar disapproving of PLANCON for the school district project.= 'ou request advice from this Commission as to whether your we : k ng with the employees of the Department of Education cn submission of these PLANCON forms would create a confiic4` <. Discussion: As a member for State Board of Education, 1'ot a , a public official within the definition of that term as s Zortil in the Ethics Act and the regulations of this Commission £:) P.S. S402; 51 Pa. Code S1.1. As such, you are subjec- tr the provisions of the Ethics Act. The Act does, however, provide as follows: Section 3. Restricted Activities. (a) No public official or public employes shall use his public office or any confidential information received through hip.° holding public office to obtain financial gain other than compensation provided by le - r for himself, a member of his immed ate family, or a business with which he is associated. 65 P.S. 403(a). Within the above provision of law, no public o:ff i 7ial - ir use his position or any confidential information obtained the:-e.n in order to obtain a financial gain for himself or a member: of his immediate family or a business with which he is assoc ted. The Act defines business with which one is associated as fo4.lows: Section 2. Definitions. "Business with which he is in which the person or immediate family is a employee or holder of stock Financing approved. Completed by School District, Investment Banker, Bend Counsel and Board Solicitor." associated." Any business a member of the person's director, officer, owner, . 65 P.S. 402. Under this provision, the Ethics Commission has determined that the use of office by a public official to obtain a gain or Mr. - ?aui E. vochko, Ee . D. June 9, 1988 Page 4 a "financial gain other thtu compensation prow' ed for Ly law." These determinations have been appealed to the Commonwealth Court of Pennsylvania which has affirmed the ozders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 ('983). See also Yacobet v. State Ethics Commission, , Commw. Pa. , 531 A.2d 536 (1987). Under this provision, a public official may not use public office to secure any financial gaiai for himself or for the business with which he is associated. Since you are employed by the Associates, that is a business with which you are associated under the Ethics Act. Section 3(b) of the Ethics Act provides: (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 employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). 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 neither offer nor accept an ,thing of value on the understanding or with the intention that ais judgement would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced nit 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 Mr. Paul R. Vochko, Ed. D. June 9, 1988 Page 5 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. S401. 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 iE not entitled. Domalakes Opinion, supra. Under the above provisions of 07s Ethics Act, it woes not appear that the Ethics Act would proh -oit your submission of the PLANCON forms on behalf of the Associates for various renovatit or building projects for school districts when you are a member of the State Board of Education. However, it is assumed for purposes of this advice that you as a member of the State Board of Education do not have any input or involvement in the review or approval of the PLANCON forms and that you have not used your position to obtain approval of the PLANCON forms submitted on behalf of the Associates. Further, in the event that any matter concerning the Associates or the review and approval procedures as to PLANCON forms should come before the Department of Education, you could not participate in that matter and would have to note your abstention publicly. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statue, 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 member of the State Board of Education, you are a public official subject to provisions of the Ethics Act. You may under the Ethics Act as an employee of N. John Cunzolo and Associates prepare and submit the PLANCON forms on behalf of various school district clients of your firm to the Department of Education subject the limitations as noted above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 disclo -,ed 3 aul 11. Vochko, Ed. D. Jule 9, 1988 Page 6 truthfully all the material facts and commii:ted the acts complained of in reliance on the Advice given. This letter is a public record and will be made Evailable as suc'i . Finally, if you disagree with this Advice or if you have any :.season to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a former Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission u ithin 15 days of service of this Advice pursuant to 51 Pa. Code §2.12. Sincerely, ..._J 10W Vincent . Dopko, General Counsel