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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