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HomeMy WebLinkAbout90-547 ElderMs. Suzanne M. Elder Booher & Eider Accountants 139 West Market Street Lewistown, PA 17044 Dear Ms. Elder: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 17, 1990 90 -547 Re: Conflict, Public Official /Employee, School Director, Immediate Family, Voting, Bills. This responds to your letter of April 4, 1990, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a school director, who in partnership with his wife performs the occupational tax and earned income tax collection for the school district, as to participating or voting regarding bills to be paid to the partnership. Facts: After referencing that you obtained a ruling from this Commission in 1978, Elder, Opinion 79 -061, you note that your husband was a school director and that you as his wife have a partnership which bid and received the job of the occupation tax and earned income tax collector for the school district. You state that the Commission found that there was no conflict on the basis that your husband was not associated with the business so that you could accept the job as tax collector. The question has once again arisen as to whether your husband should vote on the monthly bills paid by the school district. The board president has indicated that your husband should abstain from voting as to your bill as part of the list as well as state the reason for his abstention regarding the conflict of interests. ;After referencing a telephonic communication with the Commission, you note that you are paid by the school district on a percentage of collection which is 1.7 percent. You further reference your communication that the bills to the school district are regular and have never been challenged. Thereafter you note that another school director has a daughter as a teacher and inquire as to Ms. Suzanne M. Elder Page 2 include the payroll for the school district or whether he must abstain and give the reason therefore. Finally you wonder whether the other school director would be eligible to participate on the contract negotiating team as well as be able to vote for the budget and the contract. Discussion: As a director for school district, your husband is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Sections 3(a) and 3(f) of the Ethics Law provide: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. Section 3. Restricted activities. (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has . been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. Ms. Suzanne M. Elder Page 4 could not use confidential information or the authority of office to obtain a private pecuniary benefit for himself, a member of his immediate family or business with which he is associated. Since your husband is in partnership with you and since you are a member of his immediate family, he could not vote or participate in awarding the contract for the collection of tax to your partnership. However, regarding the payment of bills by the partnership to the school district, the Commission held in Krushinski, Order 168, that a public official was not precluded from voting upon the payment of routine, non- discretionary, non - contested bills providing the public official did not participate in the award of the original contract. Therefore, assuming that your husband did not participate or vote regarding the award of the contract to the partnership and assuming that the monthly bills are in fact routine, non - discretionary and non - contested in nature, then your husband would not be precluded from participating or voting regarding the approval of the monthly bills. Although you have not posed the question 3(f) quoted above restricts a public official, his spouse or a business with which he or his spouse is associated from contracting with his governmental body unless the requirements of Section 3(f) are satisfied. Thus, the open and public process, must be used in all situations where a public official is otherwise appropriately contracting with his own governmental body in an amount of $500 or more. This open and public process would require: (1) prior public notice of the employment or contracting possibility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered and; (4) public disclosure of the contract awarded and offered and accepted. Further, Section 3(f) requires that the public official could not have supervisory or overall responsibility as to the implementation or administration of the contract. You must be cognizant of the above requirement. Turning to the inquiry you raise regarding another school director whose daughter is employed as the teacher, Section 7(10) and (11) of the Ethics Law limit the issuance of advisory Ms. Suzanne M. Elder Page 3 "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 private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict or "conflict of interest" 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 or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family 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 the performance of duties and responsibilities unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. "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 has a financial interest. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions and definitions of the Ethics Law to the instant matter, your husband as school director Ms. Suzanne M. Elder Page 5 opinions to persons or their authorized representatives who may seek advice relative to their own conduct. Since your inquiry in this case relates to the conduct of some other public official, it is considered a third party request and as such cannot be addressed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law Specifically not addressed herein is the applicability of the Public School Code or tax collection law. Conclusions As a director for the school district, your husband is a public official subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not restrict a school director from voting on routine, non - discretionary, non - contested bills from a business with which he is associated that are submitted to the school district for approval. To the extent applicable, the provisions of Section 3(f) outlined above must be followed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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. 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 2.12. Sincerely, 0 11,t, Vincent . Dopko, Chief Counsel