HomeMy WebLinkAbout94-529 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108-1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 17, 1994
94 -529
Re: Conflict, Public Official /Employee, School Board Member, Use
of Authority of Office or Confidential Information, Vote,
Immediate Family, Brother -in -Law, School District Business
Manager.
This responds to your letter of February 15, 1994 in which you
requested a 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
from voting to hire his brother -in -law as Business Manager for the
school district.
Facts: You are Solicitor for a school district. You have been
asked by a duly elected Member of the School Board to seek this
advice. The school district has been interviewing candidates for
the position of Business Manager. A potential candidate for this
position is the brother -in -law of the school board member; that is,
he is the brother of the school board member's wife.
Based upon the above, you request a confidential advisory as
to whether the Ethics Law restricts or prohibits the school board
member from voting on hiring his brother -in -law as Business
Manager.
Discussion: It is initially noted that pursuant to Sections 7(10)
and 7(11) of the Ethics Law, 65 P.S. 5S407(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. S5407(10), (11). An
Confidential Advice, 94 -529
March 17, 1994
Page 2
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
As a Member of the School Board, the Member 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.
"Immediate Family." A parent, spouse,
child, brother or sister.
"Business with which he is associated."
Any business in which the person or a member
Confidential Advice, 94 -529
March 17, 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.
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
Confidential Advice, 94 -529
March 17, 1994
Page 4
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.
You are further advised that 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 a business with
which a public official or a member of his immediate family is
associated.
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.
In this case, since the term "immediate family" is defined to
include a parent, spouse, child, brother or sister and since the
School Board Member and his brother -in -law are not in a familial
relationship delineated above, Section 3(a) of the Ethics Law would
not restrict the Board Member's prospective official participation
in matters pertaining to the employment of his brother -in -law as
Business Manager. However, this Advice is conditioned upon the
assumption that neither the School Board Member nor any immediate
family member, nor any business with which he or a member of his
immediate family is associated, as defined in the Ethics Law, would
receive a private pecuniary benefit from his proposed conduct.
Confidential Advice, 94-529 -
March 17, 1994
Page 5
See, Baker Opinion 89 -016; Cowden, Advice 93 -568.
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: A Member of the School Board is a public official
subject to the provisions of the Ethics Law. Section 3(a) of the
Ethics Law would not restrict the School Board Member from voting
to hire his brother -in -law as Business Manager since he is not a
member of that Board Member's immediate family as that term is
defined under the Ethics Law, provided neither that Board Member,
nor any member of his immediate family nor a business with which he
or a member of his immediate family is associated, as defined by
the Ethics Law, would receive a private pecuniary benefit from his
proposed conduct. 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 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).
i cerely,
Vincent W Dopko
Chief Counsel