Loading...
HomeMy WebLinkAbout88-616 BoyerMr. Donald E. Boyer 1440 Sunrise Drive Dauphin, PA 17018 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL _ July 29, 1988 88 -616 Re: Conflict of Interest, Director of the Bureau of Budget and Management in the Department of Education, Employment as School Superintendent This responds to your letter of June 17, 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 you as the Director of the Bureau of Budget and Management in the Department of Education from assuming the position of a School Superintendent in a distressed school district over which you were appointed to the Board of Control. Facts: You state that you are currently the Director of the Bureau of Budget and Management for the Department of Education, hereinafter Department, and that in 1984 the Secretary of Education appointed you as the Chairman of the Board of Control of the distressed Clairton City School District, hereinafter District. You advise that two other individuals were appointed by the local court and those two individuals and yourself comprise the Board of Control pursuant to Section 692 of the Pennsylvania School Code of 1949 as amended and that said Board assumed control over the affairs and operations of the District in place of the locally elected school board. After noting that you simultaneously served as Chairman of the Board and Department Director you note that in May of this year the Board of Control petitioned the Court of Common Pleas of Allegheny County to relinquish their control to the District. Thereafter you advise that the District is without a superintendent and that the elected Board requested that you assume the position of Superintendent. After stating that you have told the Board that you would seek a ruling from this Commission, you ask whether the Ethics Act would impact upon the career change you contemplate. Donald E. Boyer July 29, 1988 Page 2 Discussion: As a Director of the Bureau of Budget and Management in the Department of Education, and Chairman of the Board of Control you are a "public official /employee" as these term are defined in the Ethics Act. As such, your conduct is subject to the provisions of the Ethics Act. 65 P.S. §402; 51 Pa. 1.1. 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). Under Section 3(a) quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate.- family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, A.2d (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, Pa. Commw. Ct. , 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Under the above provision of Section 3(a) of the Ethics Act, although you would not be precluded from seeking the position of School Superintendent of the district, you could not use your position as Bureau Director or the Chairman of the Board of Control or any confidential information to obtain the position of school superintendent. Then,it is expressly assumed for purposes of this advice that you did not use your position as Bureau Director or Chairman of the Board of Control to serve the offer Donald E. Boyer July 29, 1988 Page 3 of employment or to preclude the consideration of competitor applicants. 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 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. You must be cognizant of this provision of law and adhere to its mandate. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. §403. In respect to the one year representation the Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1 Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, Donald E. Boyer July 29, 1988 Page 4 negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employee. 51 Pa. Code §1.1. The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Acct to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been associated, including, but not limited to, negotiations or renegotiations on contracts. 2. Attempts to influence the governmental body; 3. Participating in any matters before the governmental body over which you had supervision, direct involvement, or responsibility; 4. Lobbying, that is representing the interests of any person or employer before governmental body in relation to legislation, regulations, etc. See Russell, Opinion 80 -048 and Seltzer, Opinion 80 -044. In the instant matter it would appear that your governmental body would be the Bureau within the Department; additionally, since you served as Chairman of the Board of Control, that Board would also be a governmental body with which you are associated. The question arises as to whether the school district for which you are seeking the position of School Superintendent would also be considered your governmental body. Your appointment as Chairman of the Board of Control came about as a result of action by the Secretary of Education and did not involve any appointment by the school board; therefore it would seem that the school district would not be considered a governmental body which you are associated. Additionally, the Control Board did not act with the school board but in lieu thereof due to the distressed condition of the District. In any event, the Commission in construing representation before one's formal governmental body has determined that the legislative intent behind section 3(e) was to prohibit representation of persons in circumstances that might give rise to a conflict, that is where government employees or officials would leave public sector and enter the private sector. In two cases Hagan, Opinion, 84 -019 and Pinto, Opinion, 84 -021, the Commission determined that former public employees had no restrictions under section 3(e) of the Ethics Act on their ability to represent their new government Donald E. Boyer July 29, 1988 Page 5 employers or entities before the body which they had formerly been associated. The Commission's conclusion was primarily based upon the fact that where the post governmental employment is with another governmental body or entity, the concerns the legislature sought to address through section 3(e) of the Ethics Act were allayed or reduced because the new governmental employer could not be expected to seek to influence the governmental body formerly served by the individual in the same manner as a nongovernmental employer would. Therefore the Commission concluded that the restrictions of Section 3(e) of the Ethics Act would not be applicable in such circumstances. The Commission has determined that it is permissible under Section 3(e) of the Ethics Act for an individual to transfer from one position in governmental service to another position in the same branch, Cohen, Opinion 79 -045; or that a public employee may transfer from one branch of governmental service to another branch, see Pinto, Opinion 84 -021; Hunt, Opinion 84 -017. Any event it does not appear that the School Board is a governmental body with which you are associated as that term is defined under the Ethics Act. 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. Specifically not addressed in this advice is the applicability of the School code in that that provision of law does not involve an interpretation of the Ethics Act. Conclusion: As Director of the Bureau of Budget and Management in the Department of Education and Chairman of the Board of Control in the Clairton City School District you are a public official /employee subject to the provision of the Ethics Act. Subject to the qualifications and limitations noted above, Section 3(a) of the Ethics Act, it would not preclude you from seeking the position of School Superintendent of the Clairton School District provided you have not used public office or confidential information to obtain that employment. As outlined above Section 3(e) of the Ethics Act would not preclude you from leaving one position in governmental service and going to another position as a School Superintendent in the Clairton School District subject to the limitation noted in Section 3(a) as noted. 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 Donald E. Boyer July 29, 1988 Page 6 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 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. S'ncerely, %--vAq 04 Vincent . Dopko, General Counsel