Loading...
HomeMy WebLinkAbout94-516 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783-1610 ADVICE OF COUNSEL February 23, 1994 94 -516 Re: Conflict, Public Official /Employee, School District Board Member, Assistant City Business Manager, City Clerk, Appointed by City Council, City Council Member, Seeking Employment as Assistant Superintendent of District, Use of Authority of Office or Confidential Information, Vote. This responds to your letter of January 26, 1994 in which you requested confidential 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, who is also a City Clerk and Assistant City Business Manager, appointed by City Council, from participating in selecting a School District Assistant Superintendent when one of the applicants is a Member of City Council. Facts: You are a member of School District A. You also hold the positions of Assistant Business Manager and City Clerk for City B. The City Council appointed you to your positions. Recently, it has come to your attention that a Member of City Council is going to apply for the position of Assistant Superintendent for the school district. Accordingly, you would be required to vote on this matter as a Member of the School Board. You have requested an opinion from the School District solicitor and have been advised that it would be a conflict for you to vote on this matter since the City Council has direct control over your position as Assistant Business Manager and City Clerk including your salary. Based upon the above, you request an advisory as to whether a conflict of interest exists under the Ethics Laurin connection with this situation. Confidential Advice, 94 -516 February 23, 1994 Page 2 _ Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. §S407(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 advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a School Board Member for School District A, 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 Confidential Advice, 94 -516 February 23, 1994 Page 3 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 /emp oyee would be influenced thereby. Reference is made to these prow sions 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) o the Ethics Law provides as follows: Section 3 Restricted activities. (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylva1ia 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. Confidential Advice, 94 -516_ February 23, 1994 Page 4 If a conflict exists, Section 3(j) requirE :s 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 the issue presented herein, the prohibitions pursuant to Section 3(a) regarding use of authority of office, as statE :d above, are applicable. The use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes discussing, conferring with others, lobbying for a particular result and /or any other use of the authority of office in which the result would be a private pecuniary benefit to yourself. Thus, conflicts of interest would arise where the use of authority of office would result in a private pecuniary benefit to yourself. You would have a conflict of interest in any matter before the School District involving the Member of City Council who is applying for the position of Assistant Superintendent. The concern is that you, as an employee of the City, would have the responsibility of reviewing the City Council Member's application for the position of Assistant Superintendent. In particular, the potential exists, given this employer - employee relationship, that his application might be reviewed in a more favorable light than others. To avoid this situation, you must not participate in or take any action as to this Council Member. See Woodrinc, Opinion 90 -001. This Advice is based on established Commission precedent as set forth in Woodrina,- supra, Miller, Opinion 89 -024, and Kannebecker, Opinion 92 -010. In Woodrina it was held that a Chairman of a Redevelopment Authority could not take any action as to an Authority Employee who was the Community Development Coordinator for a program grant for which the Chairman was applying. Miller held that matters which came before a public official involving his private business or private clients place that public official in a situation where he is faced with conflicting interests. In his private capacity, a duty is owed to his private employer or private clients, while in his capacity as a public official, his primary duty is to act in the best interest of the governmental body. Kannebecker held that a public official Confidential Advice 94 -516 February 23, 1994 Page 5 had a conflict as to individuals who had matters penc.ing before the township when the public official was an attorney for those individuals in unrelated matters. See also Bassi, Opinion 86 -007. In each instance of a conflict of interest, you would be required to abstain from any participation of any nature and to satisfy the disclosure requirements of Section 3(j) as set forth above. 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. 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 respective municipal code. Conclusion: As a School Board Member for District A, you are a public official subject to the provisions of the Ethics Law. Pursuant to Section 3(a) of the Ethics Law, you would be prohibited from using the authority of office or confidential information as a means of receiving a private pecuniary benefit for yourself. You would have a conflict of interest as to any matter before the School District involving the City Council Member who is applying for the position of Assistant Superintendent. In each instance of a conflict of interest, you would be required to abstain and satisfy the disclosure requirements of Section 3(j) of the Ethics Law as outlined above. 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 trilthfully 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by thu1 Commission. Confidential Advice, 94 -$16 February 23, 1994 Page 6 Any such appeal must be in writing and mu st 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 State:; mail, delivery service, or by FAX transmission (717- 787- 0806). cerely, Vincent J1bopk Chief Counsel