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Home My WebLink About90-589 Derse Jacobs LehmanSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 23, 1990 Delaware Valley School Board 90 -589 c/o Derse, Jacobs, Lehman Administrative Offices Star Route 1, Box 379A Milford, PA 18337 Re: Conflict, Public Official /Employee, School Director, Business with Which Associated, Directors of Local Bank, Voting, Raises for School Administrators, Administrators' Mortgages at Local Bank. Dear Messrs. Derse, Jacobs, Lehman: This responds to your letter of July 27, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon school directors from voting on pay raises for school administrators who have mortgages with the local bank of which the school directors serve on the board. Facts: As school directors of the Delaware School District (District) in Milford, Pennsylvania you seek advise as to the propriety of your voting on raises for several administrators in the school district who have mortgages with the local bank wherein you are members of the board of directors. After noting that the action on the raises is anticipated before the board on an August 16, 1990, you seek a written response from this Commission as to the propriety of the proposed action. Discussion: As school directors for Delaware Valley School District, you are public officials as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. 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. Delaware Valley School Board Derse, Jacobs, Lehman Page 2 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 unique to a particular public office or position of public employment. "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. Delaware Valley School Board Derse, Jacobs, Lehman Page 3 Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) 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 body would be unable to take any action on a matter before it 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 body 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. If a conflict exists, Section 3(j) requires the public official /employee to abstain as well as file a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s), then in that event participation is permissible provided the disclosure requirements noted above are followed. Delaware Valley School Board Derse, Jacobs, Lehman Page 4 In applying the facts to the above quoted provision of Section 3(a) of the Ethics Law, you would not have a conflict in this case as to voting on the raises of these school administrators. It is assumed that the administrators are not members of your immediate family and these individuals are not (part of) a business with which you are associated. Although the local bank is a business with which you are associated, your action in voting raises to the school administrators relates to the administrators themselves, that is, you would not be voting on a matter involving the local bank. Accordingly, since your vote to give the pay raises does not relate to yourself, a member of your immediate family or business with which you were associated, Section 3(a) of the Ethics Law would not restrict your activity in that regard. 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. Conclusion: As school directors for Delaware Valley School District, you are public officials subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Act would not restrict school board members from voting on pay raises for several school district administrators who are neither members of the immediate family of the school board members nor are (part of) a business with which they are associated. 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 - - .x_y such. 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 Delaware Valley School Board Derse, Jacobs, Lehman Page 5 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. 1/14.‹A.0 Vincent J. Dopko, Chief Counsel