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HomeMy WebLinkAbout91-515 FrancisMr. David E. Francis 712 Park Boulevard Altoona, PA 16601 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 19, 1991 91 -515 Re: Simultaneous Service, Auditor, Office of the Auditor General, Bureau of School Audits and School Board Director. Dear Mr. Francis: This responds to your letter of January 4, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon a field auditor with the Office of the Auditor General, Bureau of School Audits from also serving or being employed as a school board director. Facts: You advise that you will be a candidate for the position of school board director on the Altoona Area School Board. You also serve as a field auditor with the Office of the Auditor General, Bureau of School Audits. In your position as a field auditor you are required to examine receipt of state subsidies and reimbursements, along with related expenditures of school districts for compliance to applicable laws and regulations. You state that you will excuse yourself from any audits of the Altoona Area School District and the vocational /technical school in Altoona. You seek the advice of the State Ethics Commission with regard to your candidacy for the Altoona Area School Board. Discussion: As a field auditor for Bureau of School Audits, you are a defined in the Ethics Law and hence of the Ethics Law. 65 P.S. 5402; 51 the Office of the Auditor General, "public employee" as that term is you are subject to the provisions Pa. Code X1.1. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. Mr. David E. Francis Page 2 The following terms are defined under the Ethics Law: 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. 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 official /employee would be influenced thereby. In applying the above provisions of the Ethics Law to the question of your candidacy and, if elected, your simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if you were to serve both as a public official /employee and as a school board director under these circumstances. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as a field auditor for the Bureau of School Audits and as a school board director. The main prohibition under the Ethics Law and Opinions of the Ethics Commission is that one may not serve the interests of two persons, groups, or entities whose interests may be adverse. Smith Opinion, 89 -010. In the situation outlined above, you would not be serving entities with interests which are adverse to each other. Mr. David E. Francis Page 3 However, this advice is subject to the express condition that you comply with the restrictions set forth herein. Within the above provisions of the Ethics Law, you as a public employee may not use your public employment to any extent to the benefit of the district which you are serving. You may not participate in any audit by the Auditor General's Office which relates to the school district on which you are a member. Furthermore, you may not participate in any activity as a public employee that relates to the schools, the employees, or your fellow board members in the Altoona Area School District. Similarly, if the Altoona Area School Board has jurisdiction over any other institution including but not limited to the vocational school which you specified and any community colleges, you may not participate in reviewing the financial matters of those entities as a public employee. A conflict of interest would arise in any occasion where you attempt to serve one or more interests that are adverse. If a situation arises where you or the respective entities you represent develop an adverse interest, then you must remove yourself from that particular matter and publicly announce and disclose the nature of your interest as a public record in a written memorandum to the appropriate person (supervisor or secretary who keeps the minutes). If such a situation would arise, additional advice may be sought from the Commission. Although every potential conflict of interest cannot be envisioned, you are advised to seek further advice in the event that a question should arise. For example, if you are auditing a neighboring school district and that district has had any types of transactions or dealings with your own school district, a potential conflict may arise. As such, you may need to seek the further advice of this Commission. Additionally, the above provisions of the Ethics Act prohibit you from using any confidential information that you obtain through your public position to the benefit of the school districts. Finally, you should be cautioned that no public official or public employee may use his office or employment or confidential information received through holding public office or employment for a private pecuniary benefit for himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. Within this provision, the State Ethics Commission has determined that a public official or public employee may not use his current office or position to benefit his campaign for public office. You may not, therefore, within this restriction use personnel, facilities, equipment, materials, or the time of your current employer to enhance, conduct or support your campaign. See, Hafer, Opinion 90- 013, for a review of prior Commission decisions on this matter. 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 Act has not been considered in that they do not involve an interpretation of the Ethics Act. such. Mr. David E. Francis Page 4 Conclusion: As a field auditor for the Office of the Auditor General, Bureau of School Audits, you are a "public employee" subject to the provisions of the Ethics Law. As a public official /employee, you may, consistent with Section 3(a) of the Ethics Law, be a candidate for the position of school board director and, if elected, simultaneously serve as a school board director for the Altoona Area School Board and as a field auditor for the Office of the Auditor General, Bureau of School Audits, subject to the express condition that your conduct must conform to the requirements of the State Ethics Act as outlined above. In the event that specific questions as to conflicts of interest arise in the future, you may seek the further advice of this Commission. If you are elected to the office of school director, you may not participate in any matter as a public employee regarding the audit of schools or school districts related to the board on which you are serving. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. 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 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 52.12. Vincent J. Dopko, Chief Counsel