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HomeMy WebLinkAbout92-502STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 9, 1992 Dr. George E. Taylor Superintendent of Schools Quakertown Community School District 600 Park Avenue Quakertown, PA 18951 -1588 Re: Conflict, Public Official /Employee, School Director, Immediate Family, Child, Employment, Use of Authority of Office, Voting. Dear Mr. Taylor: 92 -502 This responds to your letters of October 23, 1991 and November 13, 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 Mr. Zane R. Stauffer as a School Director and Treasurer of the Quakertown Community School District with regard to the prospective hiring of his daughter as Coordinator of Accounting and Reporting for the District. Facts: As Superintendent of the Quakertown Community School District, you seek the advice of the State Ethics Commission regarding the District's prospective hiring of a Board Member's daughter. The School Director involved, Mr. Zane R. Stauffer, is also the Treasurer of the District. You state that the purpose of your request is to ensure the propriety of Mr. Stauffer's conduct with regard to the District's potential hiring of his daughter. Commencing in the summer of 1991, the District solicited applications for the position of Coordinator of Accounting and Reporting, for which position the primary job responsibilities include assisting the Director of Business Affairs in preparing state financial reports, performance of monthly accounting routines and preparation of monthly financial reports. Mr. George E. Taylor January 9, 1992 Page 2 Applications were sought through advertisements in three newspapers and the Pennsylvania School Boards Association Bulletin, as well as internal posting. The District received one hundred sixty -six applications, which the Director of Personnel and the Director of Business Affairs for the District reviewed and narrowed down to twelve based upon the applicants' qualifications. The twelve individuals were interviewed by the Director of Personnel, the Director of Business Affairs or both. During the interviews, questions as to accounting background and experience as well as computer experience were asked. Based on the interviews and the candidates' qualifications, the field was narrowed down to four applicants. The four finalists were asked back for a series of second interviews with the Director of Personnel, the Director of Business Affairs and you. The four finalists were also given an accounting test which had been developed by the District, and which utilized questions obtained from a CPA examination preparation publication. Prior to the test being administered, the examination was reviewed by the District's Auditors who concluded that it would provide a fair evaluation of an applicant's ability to perform the responsibilities as outlined in the job description. Based upon the finalists' resumes, interviews, and the results of the accounting test, the Directors of Personnel and Business Affairs and you concluded that Mr. Stauffer's daughter was by far the best qualified applicant. You state that not only was her performance on the accounting test significantly better than the performance of the other applicants, but her background and experience were also superior. Of the four finalists, she was one of only two individuals with a bachelor's degree and additionally, she had an excellent academic record having been graduated as valedictorian of her class at Muhlenberg College. Following college, she had four years of experience as a Senior Financial Reporting Accountant responsible for preparing and consolidating both internal and external financial statements and reports. You state that although the administrators involved in the hiring process have had casual conversations with Mr. Stauffer regarding the fact that his daughter applied for the position, Mr. Stauffer has in no way attempted to influence the hiring decision and in fact, the administrators have made every effort to keep the hiring process confidential. Neither Mr. Stauffer nor any of the other Directors were involved in any way in the application and interview process.- Mr. George E. Taylor January 9, 1992 Page 3 Nevertheless, you state that the District administrators have withheld recommending to the full Board of School Directors the appointment of Mr. Stauffer's daughter pending a ruling on the propriety of such an appointment from this Commission. If this Commission concludes that such an appointment is not in violation of the Ethics Law, the administration will proceed and recommend to the Board that Mr. Stauffer's daughter' be appointed, as the most qualified candidate. You-note that when a vote is taken on her appointment, her father., Mr. Stauffer, will be advised to abstain as required by the provisions of the Ethics Law. Pending the issuance of an advisory from this Commission, you state that you will advise the District to take no further action relevant to the hiring- of.this individual. Discussion: As a School Director for•the•Quakertown Community School District, Mr. Zane R. Stauffer is a public official as that term is defined under the Ethics Law, and hence he 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 Mr. George E. Taylor January 9, 1992 Page 4 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. "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 anything 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(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 Mr. George E. Taylor January 9, 1992 Page 5 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 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 or 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. Section 3(j) of - the Ethics Law provides as follows: ,Section 3. Restricted activities. Mr. George E. Taylor January 9, 1992 Page 6 (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 applying the above provisions of the Ethics Law to the question which you have presented, it is initially noted that the restrictions of Section 3(a) of the Ethics Law apply to public officials and public employees with regard to their conduct. Thus, the restrictions of Section 3(a) would not apply as to action taken by the School District as a governmental body, but rather would apply to the conduct of the particular public Mr. George E. Taylor January 9, 1992 Page 7 officials /public employees whose conduct may be implicated in a given factual situation. In this case, the member whose prospective conduct is to be considered is Mr. Stauffer, and so this Advice will consider the restrictions as they apply to Mr. Stauffer under the circumstances which you have presented. In this respect, the Ethics Law would not prohibit the District from hiring a Board Member's daughter. Rather, the Ethics Law would govern the conduct of the Board Member himself. Generally, the restrictions of Section 3(a) prohibit a public official /public employee from using the authority of his office or confidential information received by holding office 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. Mr. Stauffer would have a conflict of interest under these circumstances. He may not use the authority of his office or any confidential information received by holding. office to'advance an employment opportunity for his daughter with the School District. Similarly, Mr. Stauffer may not . exert influence to further his daughter's employment opportunity with the District. Mr. Stauffer would be required to abstain from any participation of any nature whatsoever in this matter, including but not limited to participating in discussions, voting, or lobbying for a particular result. As is, the case whenever a conflict of interest arises for a public official /public employee, Mr. Stauffer would be required not only to publicly announce his abstention and the reasons for same, but also to file a written memorandum to that effect with the. Secretary recording the minutes. Turning to the restrictions of Section 3(f) of the Ethics Law, it is noted that the restrictions would apply to an employment contract with the child of a public official /public employee where the employment contract is valued at 5500.00 or more. The requirements of Section 3(f) as to an open and public process as set forth above must be observed. Furthermore, the public official /public employee - -in this case Mr. Stauffer - -may not have any supervisory or overall responsibility as to the implementation or administration of the employment contract with his daughter. For example, Mr. Stauffer may not rate his daughter's performance. If questions as to her work, continued employment, compensation, or other matters pertaining to her employment should come before him, Mr. Stauffer may not participate and he must make proper disclosures under Section 3(j) as forth above. Mr. George E. Taylor January 9, 1992 Page 8 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. Conclusion: As a School Director for the Quakertown Community School District, Mr. Zane R. Stauffer is a public official subject to the provisions of the Ethics Law. Mr. Stauffer may not use the authority of office or confidential information received by holding office for the private pecuniary benefit of his daughter. Mr. Stauffer may not use his influence to advance an employment opportunity for his daughter. Mr. Stauffer would have a conflict of interest as to the hiring of his daughter by the School District. Mr. Stauffer would have a conflict of interest as to any other matter before the Board where the use of authority of office or confidential information received by holding office would result in a private pecuniary benefit for his daughter, such as in matters involving the rating of her performance, her continued employment, salary, benefits, and the like. In each instance of a conflict of interest, Mr. Stauffer would be required to abstain from any participation of any nature whatsoever in the matter, including but not limited to participating in discussions, voting, and lobbying for a particular result. In each instance of a conflict of interest, the disclosure requirements of Section 3(j) as set forth above • must be observed. The restrictions of Section 3(f) would apply to an employment contract between the District and Mr. Stauffer's. daughter, and therefore those requirements set forth above must be observed. 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. 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 Mr. George E. Taylor January 9, 1992 Page 9 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. Sincerely, Vincent J. Dopko Chief Counsel