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HomeMy WebLinkAbout94-513 SellersLinda M. Sellers R.D. #1, Box 265 Turbotville, PA Dear Ms. Sellers: 17772 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 14, 1994 This responds to your letter of January 18, 1994 requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee presents any prohibition or restrictions upon a member board whose husband operates a business in the same which the school district is located. 94 -513 Re: Conflict, Public Official /Employee, School Board Director, Immediate Family, Spouse, Contractor within Township. in which you Ethics Law of a school township in Facts: You are a resident of Anthony Township, Montour County. You are also a School Board Director for the Warrior Run School District which is located, in part, in Anthony Township. Your husband is the sole proprietor of an excavating business which is also located in Anthony Township. Due to the fact that an Anthony Township supervisor is publicly stating that your husband cannot work for the township in any capacity which is claimed to be a conflict and a violation of the Ethics Law, given that you are on the school board from Anthony Township, you request a written advisory to present to the township to resolve the matter. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. SS407(10), (11), advisories are issued to the requestor based upon the facts which the 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 material facts relevant to the inquiry. 65 P.S. SS407(10), (11). An Sellers, Linda M., 94 -513 February 14, 1994 Page 2 advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. As a Member of the Warrior Run School District, you are a public official as that term is defined under the Ethics Law, and hence you are 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. "Immediate family." child, brother or sister. "Business with which Any business in which the A parent, spouse, he is associated." person or a member Sellers, Linda M., 94 -513 February 14, 1994 Page 3 of the person's immediate family is a director, officer, owner, employee or has a financial interest. "Financial interest. Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 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(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 Sellers, Linda M., 94 -513 February 14, 1994 Page 4 with the governmental body with which the 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, or subcontracting with any person who has been awarded a contract with the governmental body, in an amount of $500.00 or more. This open and public process would require that the following be observed as to the contract with the governmental body: (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 with the governmental body. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not Sellers, Linda M., 94 -513 February 14, 1994 Page 5 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 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 this case, it is noted that this advisory will be limited to the specific question asked. To answer your request, the governmental body with which you are associated by serving as a school board member must be identified. Sellers, Linda M., 94 -513 February 14, 1994 Page 6 The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. In applying the above definition to the instant matter, it must be concluded that the governmental body with which you are associated is the Warrior Run School District. This conclusion is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. Anthony Township is a separate and distinct governmental body, not associated with or related to the Warrior Run School District in any manner, for purposes of applying the Ethics Law to this case. Since your governmental body is the Warrior Run School District and not Anthony Township, the restrictions set forth above would not apply if your husband would contract to do work for the township. Under the provisions of the Ethics Law, as a member of the Warrior Run School District, you would have no conflict as to any work your husband does for Anthony Township. 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 Pennsylvania Public School Code. Conclusion: As a Member of the Warrior Run School District, you are a public official subject to the provisions of the Ethics Law. Your governmental body is Warrior Run School District, not Anthony Township. Subject to the Sections 3(b) and 3(c), which apply to everyone, you would not have any conflict as a school board member in relation to any work your husband does for Anthony Township. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Sellers, Linda M., 94 -513 February 14, 1994 Page 7 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). ncerely, o Vincent Dopko Chief Counsel