HomeMy WebLinkAbout93-525 CoulterJames P. Coulter, Esquire
Dillon McCandless & King
128 West Cunningham Street
Butler, PA 16001
Dear Mr. Coulter:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 9, 1993
93 -525
Re: Conflict, Public Official /Employee, School Director, Use of
Authority of Office or Confidential Information, Vote,
Immediate Family Member, Father, Law Suit, Executive Sessions.
This responds to your letters of January 26, 1993, and
February 5, 1993, 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
whose father has sued the school district for a salary claim.
Facts: As Solicitor for the Moniteau School District in Butler
County, Pennsylvania, you request an advisory from the State Ethics
Commission on behalf of one of the School Directors, Mr. Kenneth
Minnear, Jr.
You state that a law suit has been filed against the School
District by Kenneth Minnear, Sr., the father of Kenneth Minnear,
Jr. You state that Mr. Minnear, Sr. and Mr. Minnear, Jr. do not
reside in the same household nor are they financially dependent
upon one another in any way.
Mr. Minnear, Jr. has requested the opportunity to sit in on
executive sessions when the matter concerning the law suit is
discussed although he does not intend to vote or to otherwise
participate in the discussions.
You state that you have expressed your concern to Mr. Minnear,
Jr. about ethical standards which you feel suggest that even the
appearance of impropriety should be avoided.
You request an advisory concerning the propriety of Mr.
James P. Coulter, Esquire
March 9, 1993
Page 2
Minnear, Jr. sitting in on executive sessions where Members of the
Board of School Directors discuss the litigation filed by his
father. The litigation concerns a claim for salary which Mr.
Minnear, Sr. claims is due him as an employee of the Moniteau
School District.
Discussion: As a School Director for Moniteau School District, Mr.
Kenneth Minnear, Jr. 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 if 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.
"Immediate family." A parent, spouse,
James P. Coulter, Esquire
March 9, 1993
Page 3
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
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
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
James P. Coulter, Esquire
March 9, 1993
Page 4
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 applying the above provisions of the Ethics Law to the
circumstances which you have submitted, 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 immediate family, or a business
with which he or a• member of his immediate family is associated.
Kenneth Minnear, Sr. is by definition an immediate family member of
Kenneth Minnear, Jr. The paternal relationship is sufficient to
meet the above definition, which does not hinge upon cohabitation
or financial dependence.
It is clear under the circumstances which you have submitted
that Mr. Minnear, Jr., would have a conflict of interest which
would preclude him from voting, taking part in official
discussions, or otherwise using the authority of office to
participate in matters pertaining to the law suit which his father
has filed against the School District.
Additionally, it is just as clear that the conflict of
interest would preclude Mr. Minnear, Jr., from accessing
confidential information regarding the law suit. The use of such
confidential information regarding the Board's strategy,
willingness to settle, and the like would result in a private
pecuniary benefit to School Director Minnear's father.
The Commission has cited the definition of "conflict of
interest" in present Act 9 of 1989 as specifically prohibiting a
public official or employee from using confidential information
obtained through public office or employment for an immediate
family member's private pecuniary benefit. In Van Rensler, Opinion
90 -017, the Commission held, inter alia, that the Ethics Law
precluded the participation of school directors in the negotiation
process for a collective bargaining agreement when members of their
immediate families were school district employees represented by
the bargaining units. A fundamental basis for the Van Rensler
Opinion was precluding the use of confidential information obtained
through the public office as school board director to defeat the
bargaining process.
The above principles would apply to preclude Mr. Minnear, Jr.,
from accessing at an executive session of the Board, confidential
information relating to his father's law suit against the School
District. Mr. Minnear, Jr., may not be present at executive
sessions of the Board during discussions, analysis, or other
James P. Coulter, Esquire
March 9, 1993
Page 5
consideration by the Board pertaining to the said law suit.
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 Moniteau School District in
Butler County, Pennsylvania, Mr. Kenneth Minnear, Jr., is a public
official subject to the provisions of the Ethics Law. Pursuant to
Section 3(a) of the Ethics Law, Mr. Minnear, Jr., would have a
conflict of interest which would preclude his voting, participating
in official discussions, or otherwise using the authority of office
to participate in matters pertaining to the law suit filed by his
father against the School District. Pursuant to Section 3(a) of
the Ethics Law, the said conflict of interest would also preclude
Mr. Minnear, Jr., from accessing confidential information
pertaining to his father's said law suit against the School
District. Mr. Minnear, Jr., may not be present at executive
sessions of the Board during discussions, analysis, or other
consideration by the Board pertaining to the said law suit.
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 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.
ncerely,
Vincent 4Y. Dopko
Chief Counsel