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HomeMy WebLinkAbout88-586 BrownMr. Burrell A. Brown Attorney and Counsellor at Law 616 Miller Avenue, Suite 202 Clairton, Pennsylvania 15025 Dear Mr. Brown: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 14, 1988 ' b -586 Re: Conflict of Interest, School Board Members, hiring member of Board of Control as Superintendent This responds to you letter of May 8, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon the members of a school board from hiring a member of the Board of Control as a superintendent to the school district. Facts: You state that you have been retained by the three members of the Clairton School Board, hereinafter Board, regarding a potential contract between Dr. Donald Boyer and the Board. You then state that in 1984 Clairton was declared a Distress Community and a Board of Control was appointed for the Clairton School District to manage its fiscal affairs. You note that the Board of Control was composed of Dr. Donald Boyer (Chairman), and Robert Nicholas and Dennis Juran. You then state that Dr. Boyer is currently holding a full -time position as Director of Budget and Management with the Pennsylvania Department of Education. After stating that Mary Ann Nobers was removed from her position as Superintendent of the District in December 1987, you advise that in January 1988 at the recommendation of Dr. Boyer the Board of Control entered into a contract with the Pennsylvania School Board Association to institute a search for a superintendent for the Clairton School District. You advise that the search, which cost $5,000,resulted Burrell A. Brown, Esquire June 14, 1988 Page 2 in the submission of 42 candidate applications. You then state that Dr. Boyer offered to fill the position at a salary of $62,000 which is $10,000 over the current salary. After stating that Dr. Boyer submitted no application or resume for the position, you express your belief that Dr. Boyer still maintains the position of Director of Budget and Management with Pennsylvania Department of Education. You then state that the transfer of authority from the Board of Control to the School Board will officially occur on June 13, 1988 as per an order of court and that the elected school board is contemplating voting on the hiring of Dr. Boyer at a special meeting on May 26, 1988. You conclude by requesting advice as to whether the proposed employment of Dr. Boyer by the board would violate Section 3(e) and (g) of the Ethics Act. Discussion: At the outset it must be noted that the State Ethics Commission may only address your question within the purview of the Ethics Act. The applicability of any other statute, code, ordinance, regulation or other code of conduct other than the ethics act cannot be considered in that they do not involve an interpretation of the Ethics Act. Thus this advice cannot address the applicability of the school code for the above reason. Secondly, this advice may only address the propriety of the proposed conduct of the three school board members and not that of Dr. Boyer. The authority of the Ethics Commission to issue an opinion /advice regarding a person's duty under the Ethics Act is limited by statute to those persons who make requests relative to their own duties; the State Ethics Commission cannot issue an opinion /advice to a third party concerning the duties of some other person under the Ethics Act. 65 P.S. 5407(9)(i). As members of the Clairton School Board, the three members are public officials within the definition of that term as set forth in the Ethics Act. Weaver Opinion, 85 -014; 65 P.S. S402; 51 Pa. Code S1.1. As such, their conduct 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 Burrell A. Brown, Esquire June 14, 1988 Page 3 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(&). 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 provides for in law constitutes a "financial gain other than compensation provided for by law." These determinations have been appealed tr the Commonwealth Court of Pennsylvania which has affirmed the Orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 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. Under Section 3(a) quoted above, there does not appear to be any prohibition on the three school board members regarding the hiring of Dr. Boyer for the position of superintendent. It is assumed that Dr. Boyer is not a member of the immediate family of any of the three members of the Board. Thus since the three members of the Board would not be receiving any financial gain for themselves or a member of their immediate family, there is no prohibition under Section 3(a) of the Ethics Act for them to hire Dr. Boyer to the position of superintendent. As noted above, since you only represent the three members of the Board and ask advice under the Ethics Act on their behalf, this advice does not address the question of the propriety of Dr. Boyer's conduct regarding seeking the position of superintendent with the school district when he served as a member of the Board of Control. 65 P.S. 407(9)(i). • Burrell A. Brown, Esquire June 14, 1988 Page 4 Conclusion: As members of the Clairton School District, the three members are public officials subject to the provisions of the Ethics Act. There is no prohibition under the Ethics Act for these three individuals to hire Dr. Boyer as superintendent for the school district. Specifically not addressed in this advice is the propriety of Dr. Boyer's conduct in seeking the position of Superintendent to the Clairton School District when he served as member of the Board of Control. 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. such. This letter is a public record and will be made available as 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 .former 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. Sincerely, Vincent . Dopko General Counsel