HomeMy WebLinkAbout93-570 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 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
June 7, 1993
93 -570
Re: Conflict, Public Official /Employee, Simultaneous Service,
School Board Member, New Employment, Governmental Body, School
District Food Service Director.
This responds to your letter of May 27, 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 board member
with regard to prospective employment as school district food
service director and whether such member could simultaneously serve
in both positions.
Facts: As Solicitor for the Butler Area School District and on
behalf of Mr. Fred Muliner who is a Member of the Butler Area
School Board, you ask whether Mr. Muliner may apply for the
position of Food Service Director. In such position, he would
become an employee of the School District. You state that Mr.
Muliner is anxious to strictly comply with the State Ethics Law in
connection with his prospective application for Food Service
Director and in that regard, has expressed two concerns. First,
must he resign as School Director before applying for the Food
Service Director position. Second, may he simultaneously serve as
School Director and Food Service Director.
Based upon the above, you request an advisory from the State
Ethics Commission as to the restrictions and prohibitions of the
Public Official and Employee Ethics Law on Mr. Mullner's proposed
activities.
Discussion: It is initially noted that pursuant to Sections 7(10)
and 7(11) of the Ethics Law, 65 P.S. 55407(10), (11), advisories
are issued to the requestor based upon the facts which the
James P. Coulter, Esquire
June 7, 1993
Page 2
requestor has submitted. In issuing the advisory based upon the
facts which the requestor has submitted, the Commission does not
engage in an independent investigation of the facts, nor does it .
speculate as to facts which have not been submitted. It is the
burden of the requestor to truthfully disclose all of the materials
facts relevant to the inquiry. 65 P.S. SS407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
As a School Director for the Butler Area School District, Mr.
Fred Mullner 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 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.
James P. Coulter, Esquire
June 7, 1993
Page 3
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
abstention and reasons for same, both orally and by filing a
written memorandum to that effect with the person recording the
James P. Coulter, Esquire
June 7, 1993
Page 4
minutes or supervisor.
In the event that the required abstention results in the
inability of the governmental body to take action because a
majority is unattainable due to the abstention(s) from conflict
under the Ethics Law, then in that event participation is
permissible provided the disclosure requirements noted above are
followed. See, Mlakar, Advice 91- 523 -S.
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.
Although Section 3(a) of the Ethics Law would not preclude Mr.
Mullner from being considered or hired for the position of Food
Service Director for the Butler Area School District while he is a
Member of the School Board, Section 3(a) would prohibit him from
using confidential information or the authority of office to
advance his own selection or to eliminate any competitors for that
position.
Thus, although Mr. Mullner may apply for that position and
submit his resume and present qualifications in an interview
pursuant thereto while a School Board Member, he could not use the
authority of his public office as a means in whole or part to
promote his employment or conversely to eliminate any competitors
for the position. Pepper, Opinion No. 87 -008. Subject to the
qualifications as noted above, Section 3(a) of the Ethics Law would
not prohibit Mr. Muliner's prospective employment as Food Service
Director for the Butler Area School. District. ee, Boonin, Opinion
No. 90 -003.
As to whether the Ethics Act would restrict or prohibit Mr.
Mullner, as School Director, from also serving as Food Service
Director, it is noted that the State Ethics Commission may only
address questions regarding the duties and responsibilities of
public officials within the purview of the Public Official and
Employees Ethics Act. The Commission does not specifically have
the statutory jurisdiction to interpret the provisions of the
School Code. If, however, another provision of law somehow impacts
on the provisions of the Ethics Law or the Ethics Law accords
jurisdiction in relation to other provisions of law, then the
Commission may be required to interpret such provisions of law.
See, Bialer, Opinion No. 85 -020.
The Commission has determined if a particular statutory
James P. Coulter, Esquire
June 7, 1993
Page 5
enactment prohibits an official from receiving of a particular
benefit, then that official's receipt of such a prohibited benefit,
through the authority of public office, would also be a use of the
authority of office contrary to Section 3(a) of the Ethics Law. In
this respect, the Commission has been called upon, on various
occasions, to determine whether a specific pecuniary benefit or
financial gain is prohibited by law. In order to determine whether
a particular pecuniary benefit or gain is strictly prohibited by
law, the provisions of the School Code must be reviewed:
53 -322. Eligibility; incompatible offices.
Any citizen of this Commonwealth, having
a good moral character, being eighteen (18)
years of age or upwards, and having been a
resident of the district for at least one (1)
year prior to the date of his election or
appointment, shall be eligible to the office
of school director therein: Provided, That
any person holding any office or position of
profit under the government of any city of the
first class, or the office of mayor, chief
burgess, county commissioner, district
attorney, city, borough, or township
treasurer, member of council in any
municipality, township commissioner, township
supervisor, tax collector, assessor, assistant
assessor, any comptroller, auditor, constable,
executive director or ,assistant executive
director of any intermediate unit, supervisor,
principal, teacher, or employe of any school
district, shall not be eligible as a school
director in this Commonwealth. . . .
24 P.S. $3 -322 (Emphasis added).
The School Code does not appear to contain any exceptions to
the above provision that is applicable in the instant situation.
Therefore, if Mr. Mullner takes or continues to hold office and
attempts to simultaneously serve in both positions, he would be
doing so contrary to the provisions of the School Code. Further,
if he were to serve as Food Service Director while simultaneously
serving as School Board Member, he would be holding the position of
School Director which is expressly prohibited by law. Although
only the Pennsylvania General Assembly has the inherent authority
to declare offices incompatible, the State Ethics Commission may
review the Ethics Law to determine that a conflict exists based
upon the statutory incompatibility. Johnson, Opinion 86 -004. As
a result of the foregoing, any salary, benefits or gain which the
public official would receive in that office would not be
James P. Coulter, Esquire
June 7, 1993
Page 6
authorized in law in light of the foregoing incompatibility
provision; consequently, any gain or pecuniary benefit that the
public official would receive would be a gain other than
compensation provided for by law. Kina, Opinion 85 -025.
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 they` Ethics Law. Specifically not addressed
herein is the applicability of the School Code.
Conclusion: As School Director for the Butler Area School
District, Mr. Fred Mullner is a public official subject to the
provisions of the Ethics Law. Although Section 3(a) of the Ethics
Law would not preclude him from being considered or hired for the
position of Food Service Director for the Butler Area School
District while serving as a Member of the School Board, Section
3(a) would prohibit him from using the authority of office or
confidential information as a means of promoting such prospective
employment or eliminating competitors. Further, he may not,
consistent with the provisions of the Ethics Law, simultaneously
serve in the positions of School Director and Food Service
Director. 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 writinct and must be received at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code 513.2(h).
3ncerely,
Vincent J. Dopko
Chief Counsel