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HomeMy WebLinkAbout94-592 ShargotsJames R. Shargots 1805 Morey Road Fredrickstown, PA 15333 94 -592 Re: Conflict, Public Official /Employee, School District, Business Manager, Construction of Home, School Director. Dear Mr. Shargots: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 22, 1994 This responds to your letter of July 18, 1994 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 business manager of a school district with regard to hiring a school director to build his home. Facts: As the Business Manager for a school district, you request an advisory from the State Ethics Commission as to any restrictions /prohibitions of the Public Official and Employee Ethics Law (Ethics Law) which would apply if you hire one of the District's School Directors to build your home. You note that the School District Solicitor was contacted on this matter and has issued his opinion, a copy of which you have enclosed with your request. 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 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. 55407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is also noted that although your letter of inquiry sought Shargots, James R., 94 -592 August 22, 1994 Page 2 advice as to whether a conflict of interest would exist "between" you and the School Director, this advice is limited to addressing your conduct. Given that the School Director has not joined in your request, any question as to the School Director's conduct would be considered a third party request which may not be addressed within the parameters for issuing advisories set forth in the Ethics Law. 65 P.S. 5407. As the Business Manager for the School District, you. are a public employee 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. Shargots, James R., 94 -592 August 22, 1994 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. In applying the above provisions of the Ethics Law to the facts which you have submitted, it is noted that the submitted facts do not indicate that there would be any use of authority of office relative to the construction of your home. Conditioned upon the assumption that the foregoing is true, Section 3(a) of the Ethics Law would not restrict your proposed hiring of the School Director to build your home. Sections 3 (b) and 3 (c) of the Ethics Law would prohibit you from hiring the School Director to build a home based upon any understanding that his vote, official action, or judgement would be influenced thereby. Conditioned upon the assumption that no such understanding exists, Sections 3(b) and 3(c) of the Ethics Law would not preclude your hiring the School Director to construct your home. It is noted that the circumstances and issues which you have presented are strikingly similar to those considered by the full Commission in Confidential Opinion, 89 -029, where the Commission determined that a solicitor for a school district could hire a school director for painting projects conditioned upon assumptions similar to those 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 Public School Code. Conclusion: As a Business Manager for a school district, you are a public employee subject to the provisions of the Ethics Law. Conditioned upon the assumption that there would be no use of authority of office, Section 3(a) of the Ethics Law would not restrict your proposed hiring of one of the School District's School Directors to build your home. Conditioned upon the assumption that there would be no understandings violative of Section 3(b) and Section 3(c) as set forth above, the Ethics Law would not preclude you from hiring the School Director to construct your home. Lastly, the propriety of the proposed conduct has only Shargots, James R., 94 -592 August 22, 1994 Page 4 such. 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, anl 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 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 513.2(h). The appeal /may be received at the Commission by hand delivery, United States mail, delivery service, or by FA= transmission (717 -787- 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. ICIA1(4) Vincent J. pko Chief Counsel