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HomeMy WebLinkAbout88-601 TresslerMs. V. Jeanette Tres s ler 209 Glen More Drive Coraopolis, PA 15108 Issue: You ask whether restrictions or prohibition voting on the closing of a corporation which employes member. STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 6, 1988 88-601 Re: Conflict of Interest, School Board Director, Voting on Lease of School Building to Corporation which Employs Spouse Dear Ms. T.ressler: This responds to your letter of June 2, 1988, in which you requested advice from the State Ethics Commission. the State Ethics Act presents any upon a member of a school board from school and the leasing thereof to a the spouse of the school board Facts: You state that you are a School Director for the Moon Area School Board and that a matter concerning the closing of an elementary building and the possible rental of that building will become a future agenda item. You state that in the sprig of 1982, the Moon Area School Board voted to close the McCormick Elementary School and thereafter leased the building to USAir, Inc. You note at that time there were two directors whose spouses were employed by USAir, Inc. and both directors took part in the discussion and voted on the lease. You state at the present time a similar situation will occur as to the possible closing of the Carnot Elementary School and the possible leasing of that building. In this regard, you state that the superintendent directed the solicitor to prepare and draft a lease agreement for approval by USAir, Inc. as to this building and that the directive and submission were done without your knowledge. After receiving this information, you state that you publicly asked why the Board had not been notified prior to the action so as to be given an opportunity to offer input on the matter. You state that you also requested a copy of the lease and that two weeks later you again asked publicly why you had not Ms., Jeanette V. Tressler July 6, 1988 Page 2 received a copy of that draft. You then advise that your superintendent stated that he had discussed the matter with the State Ethics Commission which advised that you could not participate in the matter because of your husband's employment with USAir, Inc., which matter was reported in the Allegheny Times. You then pose five questions. First you as to whether the superintendent's statement was accurate and whether should have been made publicly and whether he should have received a written response to his question prior to his public comment. Secondly, you ask whether there should have been discussion by the Board before the draft lease agreement was drawn up. Thirdly, you inquire as to whether the administration shLAuld give other interested parties the opportunity to lease the bt:iiding in question. Fourthly, you ask whether you are required to abstain from voting in light of your husband's employment by USAir, Inc. Lastly, you ask, if you are not permitted to vote, whether you would be entitled to receive a copy of the lease and bG allowed to participate in the discussion of this matter in light of the fact that you are an elected member of the School ]oard . Discussion: As a Director of the Moon Area School Board, you are public official within the definition of that term as set forth n the Ethics Act and the regulations of this Commission. 65 2.S. §402; 51 Pa. Code §1.1. As such, you are subject to the provisions of the Ethics Act. The Act does, however, 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). Within the above provision of law, no public official may use his position or any confidential information obtained therein in order to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated. The Act defines business with which one is associated as follows: Ms. Jeanette V. Tressler July 6, 1988 Page 3 Section 2. Definitions. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or holder of stock. 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 benefit for himself 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 (1983). See also Yacobet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987). Under this provision, a public official may not use public office to secure any financial gain for himself, a member of his immediate family or . a business with which he is associated. See Domalakes, Opinion 85 -010. In the instant matter, since your spouse who is a member of your "immediate family" is an employee of USAir, Inc., then USAir, Inc. is a business with which you are associated as that term is defined under the Ethics Act. Therefore, under Section 3(a) of the Ethics Act you may not use public office or confidential information to obtain a financial gain for USAir Inc., a business with which you are associated. However, your voting on the possible closing of the Carnot Elementary School or the leasing of that building to USAir, Inc., would not be precluded by Section 3(a) of the Ethics Act because it does not appear, and it is expressly assumed for purposes of this advice, that any financial gain would inure to you or your husband as a result of voting on this matter. Therefore, under Section 3(a) of the Ethics Act, you may participate and vote on the possible closing of the Carnot Elementary School and the Leasing of that space to USAir, Inc. Turning to the matter of the statement that the superintendent made concerning what the State Ethics Commission had told him, please be advised that the State Ethics Commiss ?o -. does not give oral opinions in .telephonic communica:•ion'; further, the superintendent would not be entitled to a wriLtei, response regarding your conduct since the authority of the Ethics Commission is limited by statute to giving advisory opinlon3 to -, blic officials /employees relative to their duties unuer the ..hics Act. See 65 P.S. S407(9)(i) and (ii). Thos, the Commission cannot issue an advisory opinion to a thb d party concerning the duties of some other person under the Ethics Act. Ms. Jeanette V. Tressler July 6, 1988 Page 4 As to your other inquiries regarding the discussion by the Board of the draft lease agreement, an opportunity to lease the building to other interested parties and regarding receiving a copy of the lease, these are matters which are not within the jurisdiction of the Ethics Commission and, hence, these inquiries may not be addressed. 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 ether than the Ethics Act has not been considered in that they do n 'it involve an interpretation of the Ethics Act. Conclusion: As a school board member, you are a public official subject to the provisions of the State Ethics Act. Based upon the facts and circumstances outlined above and assuming that youu: cote or participation would not result in any type of financia' gai:i, you are advised that under Section 3(a) of the Ethics Act you would not be precluded from participating or voting in the *matter of the possible closing of the Carnot Elementary Schooa. snd the lease of that building to USAir, Inc. 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 ether civil or criminal proceeding, providing the reguestor 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 former Opinion from the Commission will be issued. Any such appeal must be mads, ir . writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code §2.12. Sincerely,: 01414 Vincent J. Dopko, General Counsel