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Home My WebLink About92-653Dear Mr. Stewart: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 9, 1992 Richard W. Stewart, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043 -0109 92 -653 Re: Conflict, Public Official /Employee, School Director, Health Insurance, Benefits, Group Plan, Participation at Own Expense. This responds to your letter of October 28, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law prohibits or restricts a school director from participating in the school district's health insurance benefits group plan for its employees, at the school director's expense. Facts: As Solicitor for the West Shore School District, you are requesting an advisory on behalf of certain members of the Board of School Directors with respect to their duties under Act 9 of 1989. You state that the West Shore School District provides a comprehensive Blue Cross /Blue Shield plan for all of the employees of the District under a group plan designed for the District's employees by Blue Cross /Blue Shield. The School Directors on whose behalf you have inquired ask whether it would be permissible for them to participate in the School District's Blue Cross /Blue Shield plan if the Directors were to reimburse the School District for the District's costs of their participation in the plan. Discussion: As School Directors for the West Shore School District, the School Directors on whose behalf you have inquired are public officials as that term is defined under the Ethics Law, and hence each is subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. Richard W. Stewart, Esquire December 9, 1992 Page 2 (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 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 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 been 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 Richard W. Stewart, Esquire December 9, 1992 Page 3 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 and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In addressing the issue of whether the School Directors on whose behalf you have inquired may participate at their own expense in the School District's health insurance benefits group plan, the question of whether such participation is permissible under the School Code may not be addressed. Since the State Ethics Commission does not have the jurisdiction to interpret the provisions of the School Code, this Advice is expressly limited to the propriety of such participation under the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his Richard W. Stewart, Esquire December 9, 1992 Page 4 immediate family, or a business with which he or a member of his immediate family is associated. The Commission has reviewed similar questions under the requirements of Section 3(a) of the Ethics Law. In Domalakes, Opinion 85 -010, the Commission held that a borough tax collector could participate at his own expense in the borough's group insurance programs. Although Domalakes was issued under former Act 170 of 1978 (amended and reenacted on June 26, 1989, by Act 9 of 1989), and therefore would not be controlling, the Commission's Opinion in Reiter, Opinion 90 -004 reached a :similar conclusion under Act 9 of 1989. The Commission concluded that a tax collector in a second class township would not be in violation of the Ethics Law by participating at his own expense in the township's hospitalization plan. Id. Although participation in group coverage may be deemed a private pecuniary benefit, (See, Keiter, Opinion 90 -004), given the fact that you have stated that the School Directors will fully bear all of the expenses for this coverage, and given the ready availability of group coverage plans, the participation of these School Directors in the School District's group plan would not appear under the circumstances presented in this case to present a conflict of interest. See also, Domalakes, Advice 91 -506; DeLuce, Advice 92 -550. Lastly, the propriety of the participation of these School Directors, at their own expense, in the School District's existing health insurance benefits group plan 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 School Directors for the West Shore School District, the School Directors on whose behalf you have inquired are public officials subject to the provisions of the Ethics Law. Section 3(a) of the Ethics Law would not prohibit these School Directors from participating at their own expense in the School District's health insurance benefits group plan. 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. Richard W. Stewart, Esquire December 9, 1992 Page 5 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 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. Vincent J. Dopko Chief Counsel