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HomeMy WebLinkAbout90-563 WashickMr. Robert L. Washick, Ed. D. 360 Main Street, Box 253 Conyngham, PA 18219 Dear Mr. Washick: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 18, 1990 90 -563 Re: Conflict, Public Official /Employee, Teacher /Consultant, Sale of Copyrighted Program to Intermediate Unit Employer. This responds to your letter of April 24, 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 teacher /pre- referral consultant regarding the sale of his copyrighted program to an intermediate unit by which he is employed. Facts: You are employed as a special education teacher by the Luzerne County Intermediate Unit (LCIU). As a pre - referral consultant, you work with teachers in local school districts in order to aide them with methods, materials or techniques that might accommodate students in their classrooms to achieve 'better or higher academic or behavioral performance. You have a private copyrighted program which is the Washick Fine Motor Program. The program is used privately and provides academic success to particular clients, most of whom are students in local schools. You believe that the program would be more effective in a school setting to remediate students at a specific time. The program currently is in one of the local school districts; however, since the LCIU is involved in special education of which you are a special education teacher /pre- referral consultant, you would like the LCIU to purchase the program from you to use in the public school systems or through the IU classrooms where needed. Because you are employed by the LCIU as a pre - referral consultant, you have been told that the purchase of the program would be a conflict and you seek clarification on this matter. A job description for your duties and responsibilities has been requested and you have submitted what appears to be a general classification specification for a pre- referral intervention teacher. Mr. Robert L. Washick Page 2 Discussion: As a pre - referral consultant and special education teacher for LCIU, you are a public employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. This conclusion is based upon the job description and duties, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimus on the interests of another person. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. 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 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 Mr. Robert L. Washick Page 3 unique to a particular public office or position of public employment. 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 qu4stion presented. Section 3(f) of the Ethics Law provides: 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. Parenthetically, where contracting is otherwise allowed or where there appears to be no expressed prohibitions to such contracting, the above particular provision of law would require that an open and public process must be used in all situations where a public official /employee is otherwise appropriately Mr. Robert L. Washick Page 4 contracting with his own governmental body in an amount of $500.00 or more. This open and public process would require: (1) prior public notice of the employment br 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. Section 3(f) of the Ethics Law also requires that the public official /employee may not have any supervisory or overall responsibility as to the implementation or administration of the contract. Under Section 3(a) of the Ethics Law quoted above, a public official /employee may not use the authority of office or confidential information to obtain a private pecuniary benefit for himself, member of his immediate family or business with which he or a member of his immediate family is associated. In applying Section 3(a) to the instant matter, if you were to seek to have the LCIU purchase your copyrighted program, you would be using the authority of your office by such action because you are in the position of pre - referral consultant and in that regard have the duty and responsibility to suggest programs for the academic or behavioral performance of students. Your use of authority of office in that instance would result in a private pecuniary benefit to yourself because if the LCIU would select your program, the purchase of that program would result in a private pecuniary benefit to you. Accordingly, such contemplated action on your part would be a conflict under Section 3(a) of the Ethics Law and therefore you could not seek to sell your program to your employer, the LCIU. Parenthetically, even if such a sale were allowable, the requirements of Section 3(f) of the Ethics Law would have to be satisfied. 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. Mr. Robert L. Washick Page 5 such. Conclusion: As special education teacher /pre - referral consultant for Luzerne County Intermediate Unit, you are a public employee subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would prohibit you as a pre - referral consultant in seeking to have the LCIU purchase your copyrighted program because such would be a use of the authority of office to obtain a private pecuniary benefit for yourself. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), 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 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, Vincent J'. Dopko, Chief Counsel