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Home My WebLink About19-543 DragicevicPHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL September 23, 2019 To the Requester: Mir. Dan Dragicevilc Dear Mr. Dragicevic: FACSIMILE: 717-787-0806 WEBSITE: www,ethics.ga.gov 19-543 This responds to your letter dated August 19, 2019, by which you requested an advisory from the Pennsylvania State Ethics gommission ("Commission"). Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C. § 1101 et sect., would impose prohibitions or restrictions upon an individual with regard to servinon a volunteer, non -compensated position as a coach, advisor or driver for a school district's sports teams if the individual would be elected as a school director for the school district. Facts: You are considering seeking election as a school director for a school astrict (the "School District"). You ask whether the Ethics Act Would impose prohibitions or restrictions upon you with regard to serving in a volunteer, non - compensated position as a coach, advisor or driver for the School District's sports teams if-l) you would seek election as a School Director for the School District; or (2) you wouldbe elected as a School Director for the School District. Discussion: It is Initial)K noted that pursuant to Sections 11 07(l 0) and 11 07(l 1) of the Ethics --Act, 65 P § 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts thathave not been submitted, It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. 1107(10), (11). An advisory only affords a defense to the extent the requester has trut fully disc �sed all of the material facts. Sections 11 03(a) and 11030) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. --No public official or public employee shall engage in conduct that constitutes a conflict of interest. Dura icey' -543 Set] em5er 23, 2019 Pa6e 2 0) Voting conflict. -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing bod would be unable to take any action on a matter before if because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three -member governing od of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), 0). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions "Conflict!' or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the ate s me pecuniary benefit of himself, a member of his immediate ate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public b'or a subclass consisting of an industry, occupation or i other group which includes the Icial or public , employee, a member of his immediate ficamily or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to he performance of duties and responsibilities unique to a particular public office or position of public employment. "De minimis economic impact." An economic consequence which has an insignificant effect. 65 Pa.C.S. § 1102. e-tY Dra icevic, 19-543 WeMer 23, 2019 Page 3 Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office/employment or confidential information received b holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. In al i the above provisions of the Ethics Act to the instant matter, you are .1ring e advised as o ows. Section 1103(a) of the Ethics Act, pertaining to conflict of interest, imposes restrictions upon public officials and public employees. Therefore, Section 1103(a) of the Ethics Act would not apply to restrict your conduct when you would be a non - incumbent candidate for election as a Schoof Director for the School District. If you would be elected as a School Director for the School District, upon assuming said position, you would in that capacity be a public official subject to the provisions of the Ethics ct, Section 1103(a) of the Ethics Act would not prohibit you from serving in a volunteer, non -compensated position as acoach, advisor or driver for the School District's sports teams while you would be serving as a School Director for the School District subiect to the condition that there would e no use of authority of VOLir r)ublic office as a School Director to attain _arm r)ecuniary benefit that would be greater tnan ge minimis. UT., onar, /-\avice-i -i-o,+ i - uonflaenuai tAavice, uz)-o!JZ+. 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 Mer than the Ethics Act has not been considered in that they do not involve an interp retation of the Ethics Act. Specifically not addressed herein is the applicability of the Public School Code. Conclusion: Based upon the submitted fact that you are considering seeking election as a school director for a school district (the "School District"), you are advised as follows. Section 1103(a) of the Public Official and EmFloyee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1103( a), pertaining to conflict of interest, imposes restrictions upon public officials and pub ic employees. Therefore, Section 1103(a) ofthe Ethics Act would not apply to restrict your conduct when you would be a non -incumbent candidate for election as a School Director for the School District. If you would be elected as a School Director for the School District, upon assuming said position, Vou would in that capacity be a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act would not prohibit you from serving in a volunteer, non -compensated position as acoach, advisor or driver for the School District's sports teams while you would be serving as a School Director for the School District suhiect to the condition that there e no use of authority of vour oublic office as a School Director to attain a privy pecuniary benefit that would be Dra icevic, 19-543 September mber 23, 2019 Page 4 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act.. Pursuant to Section 110 (11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writin,gg and must be act�ual/V received at the Commission within that( (3Q) days of the date o ►s Advicepursuant to 59 Pa. Code Z.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, obin M. Hittie Chief Counsel