Loading...
HomeMy WebLinkAbout91-585 CancelliMr. Dante A. Cancelli, Esquire Suite 402 United Penn Bank Building 400 Spruce Street Scranton, PA 18503 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 1, 1991 91 -585 Re: Conflict, Public Official /Employee, School Director, Immediate Family, Bank Benefits to School District Employees. Dear Attorney Cancelli: This responds to your letters of July 30, 1991 and August 28, 1991, 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 a School Director with regard to the School District's prospective financial dealings with a particular bank resulting in bank benefits to School District employees, including the School Director's child, and whether the School Director may participate if the same benefits are extended by the Bank to Board members. Facts: As the Solicitor for the Valley View School District, you seek the advice of the State Ethics Commission on behalf of a School Director whose child is an employee of the District. The School District has maintained an account with the National Bank of Olyphant and is considering putting additional monies in said bank. In response to an inquiry to the bank regarding available services, a letter dated May 9, 1991 was received from the bank, which letter you have submitted and is incorporated herein by reference. Your concern is that the letter outlines benefits to be provided to the School District employees which would include, among other things, a discount of twenty percent on the loan rate, a premium rate on Christmas and vacation clubs and little or no fees for various services. You state that it is unclear whether the employee benefits would extend to the School Board members themselves. You specifically inquire whether the School Board can accept for its employees these employee benefits Mr. Dante A. Cancelli October 1, 1991 Page 2 and whether Board members may also participate if the bank extends the same benefits to them. Discussion: As a School Director for the Valley View School District, the School Board member is a public official as that term is defined under the Ethics Law, and hence the School Director is 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. 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. Mr. Dante A. Cancelli October 1, 1991 Page 3 "Immediate family." A parent, spouse, child, brother or sister. 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. 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 Mr. Dante A. Cancelli October 1, 1991 Page 4 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. Turning to your specific inquiries, they shall be addressed from the perspective of the School Director who has authorized your inquiry. Section 3(a) of the Ethics Law quoted above specifically provides in part that a public official may not use the authority of public office or employment to obtain a private pecuniary benefit for himself, his immediate family or a business with which he or a member of his immediate family is associated. The two operative elements within Section 3(a) are the phrases, "use of authority of office" and "private pecuniary benefit." Under the circumstances which you have presented, it is clear that by participating and /or voting to put additional School District monies in The National Bank of Olyphant, the School Director would be using the authority of his office. It is also clear that the benefits extended by the bank to School District employees would constitute a pecuniary benefit. Conditioned upon the express assumption that the School Director's child, as a School District employee, is a member of a sub -class consisting of School District employees where the sub- class contains more than one member and the child is treated no differently than all of the other members, the exclusionary language within the definition of "conflict" or "conflict of interest" would apply so that it would not be a conflict of interest for the School Director to participate in the discussions or vote regarding this matter. However, the School Director could not participate in the bank benefits to School District employees because in so doing, the School Director would use the authority of office to obtain a private pecuniary benefit for himself. 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 School Code. Mr. Dante A. Cancelli October 1, 1991 Page 5 Conclusion: As a School Director for the Valley View School District, the School Board member is a public official subject to the provisions of the Ethics Law. It would not be a conflict of interest for the School Director to participate or vote upon School District financial transactions resulting in bank benefits being extended to School District employees including the School Director's child. However, this Advice is expressly conditioned upon the assumption that the School Director's child is a member of a subclass of School District employees which subclass consists of more than one member with the child being treated exactly like the other members. The School Director could not participate in the benefits extended by the bank to School District employees, because such would constitute a use of the authority of office to obtain a private pecuniary benefit for himself. 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 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 52.12. incerely, urtcv Vincent . Dopko Chief Counsel