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HomeMy WebLinkAbout91-601 SweeneyMs. Mary Beth Sweeney 295 Elm Street Indiana, Pa. 15701 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 27, 1991 91 -601 Re: Simultaneous Service, School Director, County Vo -Tech Adult Education Coordinator. Dear Ms. Sweeney: This responds to your letter of October 7, 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 you as a School Director for the Indiana Area School District from also serving or being employed as the Adult Education Coordinator at the Indiana County Area Vocational - Technical School, which serves numerous school districts. Facts: As a School Director for the Indiana Area School District, you are seeking re- election to your third term in November, 1991. In October, 1986 you became employed by the Armstrong Indiana County Intermediate Unit 28 (IU) as Industry - Education Coordinator (part of the management team), at which time you informally contacted the State Ethics Commission and the Pennsylvania School Board Association (PSBA) and were informed that there would not be an inherent incompatibility. You have continued your employment with the IU with a series of project coordinator responsibilities until the present time. In June, 1989, the Indiana County Area Vocational- Technical School ( "Vo- Tech ") advertized the position of Adult Education Coordinator for which position you applied. At that time, you informally contacted this Commission as to whether there would be a conflict of interest, and you were forwarded a copy of Garber, Advice 89 -550. You state that no conflict was anticipated. However, the work of coordinating adult education was ultimately contracted with the IU. You were assigned and have performed this responsibility for two years as an IU employee, with enrollment growing 176 %. Ms. Mary Beth Sweeney November 27, 1991 Page 2 As of the September, 1991 board meeting, the Vo -Tech has decided not to renew its contract with the IU but will instead operate its own program. In anticipation of this action, you spoke with Assistant Counsel for this Commission, who you state did not see any apparent conflict because the Vo -Tech is operated by a number of school districts. You also obtained an opinion from your school district's Solicitor. You note that since you have been employed by the IU, you have not voted on anything involving the IU, budget or otherwise. Also, since you have been coordinating the Vo- Tech's adult education, you have not voted on anything involving the Vo -Tech. Following the submission of your letter of inquiry, Assistant Counsel spoke with you by telephone on November 7, 1991 and November 21, 1991. You have provided the following additional information. One of the other School Directors from the Indiana Area School Board sits on the IU Board - you do not. You have resigned your employment with the IU to accept the employment with the Vo -Tech. You have also clarified that the Vo -Tech serves five participating school districts including the Indiana Area School District, as well as two other non- participating districts which send students on a tuition basis. Based upon all of the above, you request an advisory opinion from this Commission regarding your prospective employment at the Vo -Tech in an administrative position as Adult Education Coordinator. Discussion: As a School - Director for the Indiana Area School District, you are a "public official" as that term is defined -in the Ethics Law and hence you are subject to the provisions of the Ethics Law. 65 P.S. 5402; 51 Pa. Code 51.1. 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. 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 Ms. Mary Beth Sweeney November 27, 1991 Page 3 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 of 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 the vote, official action, or judgement of the public official /employee would be influenced thereby. In applying the above provisions of the Ethics Law to the question of simultaneous service, there does not appear to be any real possibility of a private pecuniary benefit or inherent conflict arising if you as a School Director for the Indiana Area School District were to serve both as .a public official /employee and as Adult Education Coordinator at the Vo -Tech which serves not only your school district, but four other participating districts and two other non - participating districts. Basically, the Ethics Law does not state that it is inherently incompatible for a public official /employee to serve or be employed as an Adult Education Coordinator for a vocational - technical school. 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 Ms. Mary Beth Sweeney November 27, 1991 Page 4 would not be serving entities with interests which are adverse to each other. See, Garber,, Advice 89 -550. However, if a situation arises where you or the respective entities which you serve as a public official /employee develop an adverse interest, then you must remove yourself from that particular matter and disclose the nature of your interest 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. It is expressly assumed for purposes of this Advice that you have not used your public office /employment or confidential information to advance your own interest for the position of Adult Education Coordinator at the Vo -Tech. There is one other assumption upon which this Advice is conditioned, which relates to the following pertinent language from the School Code: S3 -324. Not to be employed by or do business with district; exceptions No school director shall, during the term or [sic] which he was elected or appointed, as a private person engage in any business transaction with the school district in which he is elected or appointed, be employed in any capacity by the school district in which he is elected or appointed, or receive from such school district any pay for services rendered to the district except as provided in this act: . . . 24 P.S. §3 -324. Although this Commission does not have the express statutory authority to interpret the School Code, the above provision on its face would clearly prohibit your simultaneous employment as Adult Education Coordinator if your employer were the Indiana Area School District which you serve as a School Director. Accordingly, this Advice is expressly conditioned upon your representations that the Vo -Tech where you would be employed in this administrative position serves numerous school districts in addition to the Indiana Area School District, such that the Vo -Tech is a body separate and apart from the Indiana Area School District. 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 Ms. Mary Beth Sweeney November 27, 1991 Page 5 other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the School Code. Conclusion: As a School Director for the Indiana Area School District, you are a "public official" subject to the provisions of the Ethics Law. As a public official /employee, you may, consistent with Section 3(a) of the Ethics Law, simultaneously serve in the positions of School Director for the Indiana Area School District and Adult Education Coordinator for the Indiana County Area Vocational - Technical School ( "Vo- Tech "). This Advice is expressly conditioned upon the assumption that there has been no use of the authority of your public office /employment or confidential information received by holding public office /employment to advance your own interest for the position as Adult Education Coordinator at the Vo -Tech, and it is further expressly assumed that the Vo -Tech serves numerous school districts in addition to the Indiana Area School District, such that it is a body separate and apart from the Indiana Area School District. Lastly, the propriety of the,proposed course of conduct has only been addressed under the Ethics Act. 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. Very truly yours, Vincent J. opko, Chief Counsel